360 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com care facility, there is a rebuttable presumption that any adverse employment action that occurs within 120 days of the complaint was in retaliation for the complaint.8 14.6 Tobacco Smoking Smoking is forbidden in enclosed spaces in nearly all California workplaces, and employers must not designate smoking break rooms for employees.9 A few workplaces are exempted, such as smoking guestrooms in hotels (limited to 20% of the rooms), tobacco shops and smokers’ lounges, theatrical production sites (if smoking is an integral party of the story), certain medical research or smoking treatment sites, private residences (except for family day care homes), and patient smoking areas in long-term health care facilities.10 The smoking ban includes the use of e-cigarettes and vaping devices that contain nicotine. 14.7 Drug-free Workplace California employers that receive state government contracts or grants must (1) publish and provide to each employee a statement that prohibits the unlawful manufacture, sale, distribution, dispensation, possession, or use of controlled substances, and lists the actions to be taken against employees who violate that prohibition, and (2) establish a drug-free awareness program.11 California’s 2018 legalization of recreational marijuana has not impaired an employer’s legal ability to enforce a drug-free workplace. That said, starting in 2024, employers will no longer be able to discipline or terminate a worker because of the worker’s off-the-job cannabis use.12 14.8 Repetitive Motion Injuries (RMIs) Under California’s first-in-the-nation ergonomics regulation, employers with 10 or more employees must create a program to minimize RMIs if (1) two or more employees suffer RMIs within the previous 12 months, (2) the injuries occur in jobs requiring the same repetitive motion, such as word processing, assembly, or loading, (3) the injuries result predominantly (more than 50%) from the repetitive job, and (4) a licensed physician diagnoses the injury as a musculoskeletal injury.13 The prevention program must consist of (1) worksite evaluation of each job similar to the one where the injury occurred in order to reduce exposures that have caused RMIs, and (2) training employees regarding the exposures, methods employed to reduce exposures, symptoms and consequences associated with RMIs, and the importance of reporting them. 14.9 “Hands off that Smartphone!” California drivers operating a moving vehicle must not use a cell phone unless the phone permits hands-free listening and talking and is so used while driving.14 They also must not hold or operate any electronic wireless communication device unless the device is designed and configured to allow voice-operated and hands-free operation, and it is so used while driving.15 Employers whose employees drive on duty should have policies prohibiting unlawful use of electronic devices, to minimize the prospect that related employee-committed torts will be considered a predictable risk of employment (see § 5.10).16 14.10 UCL Actions for Cal/OSHA Violations Employers facing a workplace accident could already expect to face the wrath of administrative agencies and even criminal prosecutors. As a result of a 2018 California Supreme Court decision, there is still more: the
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