Issue 33-November 2014
Strong Current of Useful Information and Insight in Santa Barbara
The California JPIA’s 19th Annual Risk Management Educational Forum: Ride the Wave of Risk Management held October 29 – 31 was the best-attended forum ever with 358 people representing 78 member agencies participating at The Fess Parker Resort in Santa Barbara.
The Forum kicked-off on Wednesday with the Opening Session:Building A Successful Risk Management Program. In addition to learning the key elements of a successful risk management program, the leadership characteristics and personality traits necessary for creating a meaningful risk management culture were discussed. Presented by subject matter experts from Southern California Edison, Confidence Consulting, and the Cities of Commerce, Pismo Beach, and Rancho Palos Verdes, over 200 attendees heard why, when, and how to implement lasting risk management strategies inside their agencies.
This year’s keynote speaker was Lizz Pellet. A well-known thought leader in talent management, Lizz guided the audience through the process of attracting and retaining employees that will help strengthen each agency’s culture and preserve a winning attitude. Lizz also suggested ways to repel employees that do not fit your agency’s culture and can be a drain on your successful environment. “Culture doesn’t just happen, it is grown, maintained, and nurtured!”
The Forum’s breakout sessions on Thursday addressed issues relevant to public agencies including:ADA 101, Workers’ Compensation Case Law Update, Competent Park and Playground Inspection, Ethics for Elected Officials, Best Practices for Managing Sidewalk Exposures, Cyber Threats and Responses, Conducting Reasonable Accommodation Meetings, California State Legislative Update, Public Records Act Requests, Hazardous Recreational Activities, Document Retention, Conducting Workplace Investigations, a Mock Deposition, Liability Legal Update, and Participant Waivers.
The Forum wrapped up on Friday with the Closing Session: Building a Successful Culture and Succession Planning. Presented by Lizz Pellet and Doris Sims, the session provided participants with how to create a successful organizational culture, maintain it, and plan ahead by having your future leaders already on board.
The success of this year’s Risk Management Educational Forum was significantly owed to the overwhelming support of 42 sponsors, who contributed $151,000 toward the various forum programs and activities. The Authority has always considered its business partners to be of strategic importance. This is true with respect to how they jointly work with members in managing risk, and also pertains to the role they play in underwriting a significant portion of the Authority’s Risk Management Educational Forum that has allowed us to continue to deliver an exceptional educational experience for members.
Mark your calendar now for the 20th Annual California JPIA Risk Management Educational Forum to be held September 23 – 25, 2015 at The Mark Hopkins Hotel in San Francisco.
Risk Management Educational Forum
For many years, the Authority has recognized member agencies for their efforts in managing risk by awarding them appropriately at each year’s annual meeting.
For the second year now, the Authority is stopping to recognize those who largely work behind the scenes. These are tireless workers who take the risk management seriously and make a difference in their organizations. And again this year, we are recognizing one of those individuals who best exemplifies the practice of risk management with the 2014 Capstone Award.
Nominations were received from across the pool, and were carefully vetted against the following key criteria:
- Works to support traditional or enterprise risk management efforts for the agency
- Develops, implements, and administers loss prevention and loss control programs to mitigate agency risk exposures
- Coordinates support systems that serve the agency’s risk management goals and needs
- Mentors others in developing quality risk management programs
Rayna Ospina, Human Resources Analyst for the City of San Gabriel was selected from among five finalists to be the recipient of this award. Rayna was selected, in part, because she works with each department and is proactive in ensuring that everyone in the organization understands the importance of enterprise risk management. Rayna stays current on changes in the risk management arena and works closely with California JPIA in order to enhance the city’s overall risk management culture.
The other four finalists included Terry Deeringer from the City of La Quinta, Dennis Cron from the Town of Apple Valley, Michael Casalou from the City of Commerce, and Nikki Salas from the Town of Apple Valley.
Authority Readying New Programs and Services
At last month’s Risk Management Educational Forum, Assistant Executive Officer Norm Lefmann provided attendees a high-level overview of several initiatives that are on the near horizon, and are expected to launch near January 2015. Below is a summary of those programs and services. Please contact your Regional Risk Manager should you have any questions or want more information.
- ADA Resources – the Authority is completing a pilot before rolling out a program to assist members with the Americans with Disabilities Act. The program will include compliance, site assessments, and transition plan development. An ancillary component is training, which is currently being scheduled regionally.
- Continuity of Operations – we are putting together the finishing touches on a program that will provide power, technology, space, and connectivity for planned and unplanned operational interruptions. The program will also include remediation services and contaminant removal.
- Cyber Liability – coverage has been in put in place for members, effective January 2014, and is automatically provided as part of membership. This provides for first-party privacy regulatory claims and security breach response. It also extends to third-party privacy liability, security liability, and multi-media liability.
- LinkedIn Discussion Group – over the next few weeks, we will roll out a member-focused discussion forum, which can be used by members for crowdsourcing on ideas or discussing issues. Members can initiate or respond to anything relevant to local government or the Authority.
- Medical Provider Network – We are completing the formation of an outcome-based medical network in order to provide better medical care and reduce costs for your injured workers. Different than other networks, the Authority’s primary goal is to focus on treatment instead of reducing provider fees.
- Nurse Triage – Nurse triage is a means to collect first report of worker injuries, and then to refer the worker to a medical specialist or self-care. This speeds treatment for injuries and reduces treatment costs. A program pilot is showing very encouraging cost savings.
- Property Damage Recovery – many members experience damage to property that is either partially covered or not covered under the Authority’s property program. This program will provide for expertise in recovering costs in instances of third-party fault.
- Return to Work – traditional return-to-work programs focus on what injured workers cannot do. A program pilot, which is currently underway, instead determines what injured workers can do before matching them to temporary assignments. Ultimately, this means faster recovery and reduced disruption to the workforce. Early results are significant.
- Risk Technician – we are extending the resources of one of our strategic partners to provide members with onsite assistance for risk-related work of defined scope and duration. The support would include developing policies and procedures, attending safety meetings, conducting safety assessments, providing subject-matter expertise, and attending accommodation meetings.
- Sidewalk Inspection and Maintenance – the Authority has spent nearly $14M over the last five years in settling slip and trip claims. Currently we are conducting a pilot program that evaluates different methods to reduce sidewalk deviations. Once the study is complete, we will roll out inspection and maintenance services to members.
Healthy Workplaces, Healthy Families Act of 2014: What Does It Mean for Our Agency?
by Kelly A. Trainer and Katy A. Suttorp, Burke, Williams & Sorensen, LLP
On September 10, 2014, California became the second state (Connecticut is the other) to require employers to provide paid sick leave to employees. The Healthy Workplaces, Healthy Families Act of 2014 (the “Act”) takes effect on July 1, 2015.1 There has been criticism of the drafting of the law, which many employers feel leaves important questions unanswered and provides unclear answers to others. Below are some of the most common questions we are hearing about the law.
Does the law apply to public entities?
Yes. Employer includes “any person employing another under any appointment or contract of hire and includes the state, political subdivisions of the state, and municipalities.”
Is there an exemption for charter cities?
There are some charter cities that are asserting that the Act is an unconstitutional infringement on a charter city’s right to provide for employee compensation. However, the question is not squarely addressed in the legislation, and there has not been an opportunity for a court to rule on the issue. If your agency is a charter city, you are encouraged to speak with your City Attorney’s Office on this question.
Does it apply to all employees?
The only employees who are excluded from the coverage of the Act are:
- An employee covered by a valid collective bargaining agreement that expressly provides for:
- Paid sick days or paid time off that permits the use of paid time for sick days;
- Final and binding arbitration over disputes regarding the application of paid sick days;
- Premium wage rates for all overtime worked; and
- A regular rate of pay not less than 30% more than the state minimum wage.
- Certain employees in the construction industry.
- A provider of in-home supportive services.
- An individual employed by an air carrier as a flight deck or cabin crew member that is subject to Title II of the federal Railway Labor Act.
This means that, assuming the employee meets the eligibility standards discussed below, the Act applies to full-time, part-time, temporary, seasonal, contract, and any other class of employees your Agency employs. The Act does not apply to a true independent contractor, as such an individual is not classified as an employee.
Most employers are logically focusing on the applicability of the Act to employees who do not currently receive sick leave. However, unless your Agency has a memorandum of understanding or collective bargaining agreement that meets the standards set forth above, your Agency should also consider the impact that the Act will have on employees currently receiving sick leave as well.
What are the eligibility requirements?
An employee is eligible to receive paid sick leave after he/she works for 30 or more days for a given employer within a year from the commencement of employment. This calculation begins on July 1, 2015.
What is a “day”?
Many employers are struggling with what a “day” means, and the term is not defined in the statute. Unless this is clarified with clean up legislation, our advice at this time would be to interpret the “day” as any calendar day in which work is performed by the employee.
What about our retired annuitants?
Currently, the law does not contain any specific provisions regarding retired annuitants, nor does the law address the interrelationship between the requirement of providing sick leave and existing constraints on provision of benefits to retired annuitant employees under the PERL and PEPRA. However, in connection with the similar issue of a retired annuitant potentially being considered a “full-time” employee who could be entitled to health coverage under the federal Patient Protection and Affordable Care Act employer mandate (“Affordable Care Act” or “ACA”) CalPERS has recently reaffirmed its position that retired annuitants cannot receive any benefits, including health care benefits provided under federal law.
Notably, in a circular dated November 5, 2014, the Chief of CalPERS’ Health Policy Research Division, Doug McKeever, stated that the Affordable Care Act does not supersede the prohibition against receipt of benefits by retired annuitant employees under the PERL.2 Rather, Mr. McKeever advised employers3 to ensure that retired annuitants are never scheduled to work “full-time” within the meaning of the ACA (i.e.an average of 30 hours of service per week.) As Mr. McKeever explained, under this approach, employers thereby avoid potential assessments for failure to offer health coverage to a “full-time employee,” as well as any penalties under the PERL from providing health coverage to a retired annuitant.
Accordingly, it is very possible that CalPERS may take a similar position that employers must ensure that retired annuitant employees work fewer than 30 days in a year for any one public agency employer to avoid triggering an entitlement to even one hour of sick leave. For now, we are continuing to monitor CalPERS’ circulars and other publications to help to identify any further developments in CalPERS’ position on this issue and encourage you to do the same.
Is there a notice obligation for an employee taking sick leave?
Employees with a foreseeable need for sick leave, such as a scheduled appointment, are required to provide “reasonable advance notification.” In the case of unforeseeable leaves, the employee must provide notice as soon as practicable.
How is sick leave accrued?
An employee accrues not less than one hour of sick leave for every 30 hours worked. FLSA-exempt employees are deemed to work 40 hours per workweek under the Act, unless the employee’s normal workweek is less than 40 hours per week, in which case, the employee would accrue according to that normal workweek.
Some employers are finding that their payroll systems will not accurately compute this calculation. As such, your Agency is encouraged to evaluate the technical capabilities of your payroll software to ensure that any necessary modifications can be implemented before July 1, 2015.
Is there a waiting time before the sick leave can be used?
Employers may require that employees wait until the 90th day of employment before being entitled to use accrued sick leave.
Does the employee have the right to carry over sick leave?
Yes. Sick days carry over to the following year. However, an employer is permitted to limit the use of sick days to 24 hours in each year of employment. Alternative, the Act also provides that if the full amount of leave (24 hours) is provided at the beginning of each year, then the carry-over obligation is satisfied.
Does sick leave accrued under the Act have a cash value?
No. An employer is not required to cash out any accrued, unused sick days upon termination, resignation, retirement, or other separation from employment.
However, if an employee separates and is rehired within one year of separate, any accrued and unused sick days must be reinstated, and the rehired employee can use them and accrue additional days immediately. This is a departure from the way that many public agencies administer leaves upon rehire. If your agency does not reinstate paid time upon rehire, we would advise that you evaluate such a policy with legal counsel for compliance with the Act.
Further, if employees instead receive POT for which there are no restrictions on the reason for use, employers may be required to cash out the PTO in accordance with applicable wage and hour law. We encourage you to consult with your agency’s legal counsel with potential concerns specific to your agency’s practices.
Does an employer have to advance sick days?
An employer may permit an employee to take sick days before they are earned, but the Act does not require it.
What constitutes appropriate use of sick leave?
Upon written or verbal request of the employee, an employer must permit the use of paid sick leave for the following purposes:
- Diagnosis, care, or treatment of an existing health condition or for preventative care for the employee or the employee’s family member.4
- For victims of domestic violence, sexual assault, or stalking, as provided for in Labor Codesections 230 and 230.1.
Does this mean that employees who already receive sick leave are entitled to additional sick leave under the Act?
The Act specifies that an employer does not have to provide for additional sick days if the employer has a policy that “makes available an amount of leave that may be used for the same purposes and under the same conditions as specified in” the Act and if the policy does either of the following:
- Satisfies the accrual, carry over, and use requirements of the Act; OR
- Provides not less than 24 hours or three days of paid sick leave, each year of employment, or calendar year, or 12-month basis.
Here again, the use of the word “day” is a source of confusion. Specifically, it is unclear whether the use of the phrase “or three days” in this section implies that three days can be more or less than 24 hours. It would be logical that a “day” is the amount of time that an employee was scheduled to work on the day that he/she called in sick, even if that is less than or more than 8 hours. Your agency should discuss this interpretation with legal counsel and evaluate how to address this issue until further legislative interpretation is available.
Are there any documentation obligations?
Employers are required to give employees written notice of the amount of paid sick time available either on the itemized wage statement described in Labor Code section 226, or in a separate writing provided to the employee on the designated pay date with the employee’ payment of wages.
This provision has raised another question for public entities, who are exempt from the provisions of Labor Code section 226. Despite the inapplicability of this section to public entities, we would encourage employers to comply with this requirement of the Act, as it seems the Legislature’s intent was to have it apply to all covered employers, including public entities. Specifically, the language provides that the notice can be part of the section 226 itemized wage statement, “or in a separate writing provided on the designated pay date with the employee’s payment of wages.” This would seem to provide for an alternative means of compliance with the notice requirement. Further, the Act provides that a penalty for violation of this provision “shall be in lieu of the penalties for a violation of Section 226.”
Is there a recordkeeping requirement?
Employers must keep, for at least three years, records documenting the hours worked and paid sick days accrued and used by an employee.
Are there posting obligations?
Yes. Employers are required to post in a “conspicuous place” a poster containing information about the Act. The Labor Commissioner is preparing such a poster that will be available to employers.
Is there a prohibition against retaliation or discrimination?
The Act specifically provides that:
An employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article.
In addition, the Act creates a rebuttable presumption of unlawful retaliation if an employer denies the employee the right to use sick days, discharges, threatens to discharge, demotes, suspends, or in any way discriminates against an employee within 30 days of (1) the employee filing a complaint of a violation of the Act with the Labor Commissioner; (2) the employee cooperating with an investigation of prosecution of an alleged violation of the Act; or (3) the employee acting to oppose a policy, practice, or act that is prohibited by the Act.
So, what should we be doing now?
Agencies should begin preparing for compliance with the Act now, and at a minimum, we would suggest the following steps be taken:
- Determine if your agency will provide 24 hours/3 days of leave for all employees, or if the agency will follow the accrual procedures set forth in the law. Coordinate as appropriate with payroll to ensure appropriate calculations and recordkeeping.
- Evaluate all current sick leave policies and MOU/CBA provisions on sick leave to determine compliance with the law. Draft appropriate revisions to same. Please remember that sick leave policies are within the scope of representation, and so notice and an opportunity to meet and confer with labor unions is required for changes affecting represented employees.
- If your agency does not currently have a policy for sick leave for some employees (for example, temporary or part-time), draft one and provide it to covered employees. Again, if any of these employees are represented by a labor union, meet and confer obligations must be satisfied.
- Evaluate the potential impact on any retired annuitants working for your agency, and seek guidance from CalPERS on compliance.
- Coordinate efforts with legal counsel and/or your CJPIA Regional Risk Manager, as appropriate.
- Continue monitoring the status of the law, as many are hopeful that clean-up legislation will be proposed in 2015.
1 For the complete text of AB 1522, see: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1522
2 See CalPERS Circular Letter 600-061-14: “ Affordable Care Act and PEMHCA Compliance: Enrolling Variable-Hour Employees into PEMHCA; Retired Annuitant Information; Draft IRS Reporting Forms” (available at: http://www.calpers.ca.gov/index.jsp?bc=/employer/cir-ltrs/2014-cir-ltrs.xml)
3 Although not addressed in the circular, we note that this quandary arises only for those agencies that employ 50 or more “full-time equivalents” and so are considered an “applicable large employer” under the Affordable Care Act.
4 Family member includes the following:
- A child, which for purposes of this article means a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. This definition of a child is applicable regardless of age or dependency status.
- A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.
- A spouse.
- A registered domestic partner.
- A grandparent.
- A grandchild.
- A sibling.
Mandated Reporter Training
by Kelly A. Trainer and Jaime L. Bodiford, Burke, Williams & Sorensen, LLP
In 2013, approximately 482,265 incidents of child abuse and/or neglect were reported1 in California.
The majority of these reports were made by mandated reporters under California’s Child Abuse and Neglect Reporting Act (“CANRA”), Penal Code Sections 11164 – 11174.3. The primary goal of this law is to protect children from abuse and neglect and consider the needs of the child victim. To achieve this goal, CANRA requires all employees whose duties require direct contact and supervision of children to report known or reasonably suspected child abuse or neglect. These “mandated reporters” are considered to be in a good position to recognize and report child abuse and neglect.
The law also identifies more than 40 distinct employment positions with mandated reporter responsibilities. The majority of public agencies will have one or more classifications meeting the definition of a mandated reporter, including all police department employees and public safety officers, youth day camp workers, recreation center employees and parks and recreation staff.
CANRA imposes strict procedural requirements for reporting child abuse or neglect. Employees who are considered mandated reported are required to immediately report known or suspected child abuse or neglect to local law enforcement or the county welfare department by telephone. Mandated reporters must also submit a follow-up written report within three-days of the incident. Both reports must contain specific information enumerated under the law. Significantly, employees who are mandated reporters cannot satisfy their reporting obligations by simply telling a supervisor or colleague. Failure to fully comply with CANRA’s reporting requirement subjects the mandated reporter to criminal and civil penalties.
Supervisors and agency administrators may also be penalized for interfering with the mandated reporters duties.
The law also places requirements upon employers. In particular, CANRA requires employers to implement procedures for notifying employees of their obligations. Although CANRA does not impose any mandatory training requirements, because of CANRA’s strict reporting obligations and penalties, it is imperative that public agency employees understand what constitutes child abuse or neglect and how to fulfill their legal reporting obligations. The consequences of failing to report child abuse or neglect or failing to adequately train employees on reporting procedures could create liability issues and damage the reputation and morale of an agency.
Unfortunately, it is not just California’s children who are far too often the victims of abuse and neglect. The California Attorney General’s Office reports that almost 200,000 Californians are the victims of elder and dependent adult abuse and neglect every year. As a result, California law also requires that certain individuals report elder and dependent adult abuse and neglect. The classes of employees under the Welfare and Institutions Code that are designated as mandated reporters include employees of public facilities that provide care or services for elder or dependent adults, which would include most senior programs that public agencies provide. The obligations under the CANRA are similar to those required for mandated reporters of elder and dependent adult abuse as well.
The Authority is committed to providing public agencies with tools and resources to ensure their employees understand their responsibilities under the law. To help public agencies and their employees understand their duties to identify and report child abuse and neglect, the Authority has developed policies and training programs targeted at mandatory reporting of child abuse and neglect as well as the obligations for mandatory reporting of elder abuse and neglect. For further information on training opportunities, please contact Michelle Aguayo, Training Coordinator, at firstname.lastname@example.org or (562) 467-8777.
by Melaina Francis, Risk Manager
Many member agencies have asked, “Does Cal/OSHA require safety committees?” While the answer is no, it is one of the best ways to meet the communication duties set forth in California’s Illness and Injury Prevention Program requirements1, which says, in part –‘Communication – a system for communicating with employees about safety and health matters in a form easily understood, such as meetings, training programs, posted or written notification.’ Also, establishing a safety committee is an effective management tool, as it encourages employees to participate in implementing and monitoring their agency’s safety program.
Ultimately, the purpose of a safety committee is to help reduce the risk and incidence of workplace injuries and illnesses, and ensure compliance with federal and state health and safety regulations. An effective safety committee does this by routinely assessing operations, carrying out safety campaigns, and promoting training.
Composition of a safety committee is important, and should comprise a mix of employees and managers, with representation from all levels of the organization. Key participants should include the safety manager, human resources staff, senior management, key supervisors, and line staff.
Keys to having the greatest impact include:
- Hold regular meetings
- Require attendance, except for emergencies
- Set clear meeting agendas
- Take meeting minutes that summarize the issues discussed
- Identify actionable items, including who and when
- Publish minutes and accomplishments
- Set goals
- Focus on safety issues only, and avoid complaining
Typical responsibilities of a safety committee include:
- Creating safe practices and programs
- Leading safety training
- Conducting inspections and audits.
- Reviewing incidents, near misses, accident investigation reports, claim summaries
- Establishing dispute resolution procedures.
- Providing a forum in which labor and management can collaborate on solutions
If you are considering establishing a safety committee, or re-energizing an existing one, consider promoting the committee by holding an introductory meeting for all employees to communicate the role and importance of “their” safety committee.
For more information about developing an effective safety committee, contact your Regional Risk Manager.< Back to Full Issue Print Article