Introduction Discussion of Revised City of Point Arena Personnel Manual — Point Arena City Council, January 20, 2026

POINT ARENA CITY COUNCIL

AGENDA ITEM SUMMARY
AGENDA ITEM: VIII B
MEETING DATE: 01/20/2026
TITLE
Introduction & Discussion of Revised City of Point Arena Personnel Manual

RECOMMENDED ACTION
Receive and file and direct staff to agendize for discussion and action at the February 17, 2026 City Council meeting.

ANALYSIS
The City of Point Arena last updated its Personnel Manual in 2014. Since that time, there have been numerous changes to state and federal laws governing employee management. In 2024, CIRA, in collaboration with Liebert Cassidy Whitmore (LCW), developed a comprehensive personnel manual template that incorporates current legal requirements. The template includes recommended policy language (shown in black text) along with corresponding legal justification (shown in blue italic text). Staff have not modified any benefit parameters, such as vacation accruals or holidays, which have already been approved by the City Council.

Due to the length and complexity of the document, staff recommend that the City Council receive and file the draft policies and direct staff to agendize the Personnel Manual for discussion and potential action at the February City Council meeting. This approach allows the Council, City employees, and the community sufficient time to review the proposed policies prior to Council consideration.

FISCAL IMPACT
None

ATTACHMENTS
Draft City of Point Arena Personnel Policies

CITY MANAGER SIGNATURE
_________________________________
Molly C. Haviland, City Manager
Point Arena Draft
Personnel Policies
Last Updated – January 2026
2 Table Of Contents
100 INTRODUCTION AND GENERAL INFORMATION POLICIES............................ 9 102 Effect and Applicability of Personnel Policies .............................................................................9 102.1 No Contract Right; City’s Discretion to Modify These Policies..........................................................9 102.2 Applicability of Policies .....................................................................................................................9 102.3 Conflict between These Policies and a [Collective Bargaining Agreement (“CBA”)/Memorandum of Understanding (“MOU”)]............................................................... Error! Bookmark not defined. 102.4 Employee Acceptance of Policies and Revisions to Policies..............................................................9 104 Delegation of Authority..............................................................................................................9 104.1 Delegation of Appointing and Personnel Authority to [City Manager, County Administrator, General Manager].............................................................................................................................9 104.2 Retention of Personnel Authority as to Certain Personnel...............................................................9 106 Categories of Employees and Non-Employees.......................................................................... 10 106.1 At-Will Employees...........................................................................................................................10 106.2 Probationary Employee...................................................................................................................10 106.3 For-Cause Employee .......................................................................................................................10 106.4 Full or Part-Time Employee.............................................................................................................11 106.5 Temporary or seasonalEmployee ...................................................................................................11 106.6 Volunteer ........................................................................................................................................12 106.7 Independent Contractor .................................................................................................................12 200 EQUAL EMPLOYMENT OPPORTUNITY...................................................................12 202 Equal Employment Opportunity Policy..................................................................................... 12 204 Policy against Discrimination, Harassment and Retaliation; Complaint Procedure................... 12 204.1 Purpose ...........................................................................................................................................12 204.1.1 Covered Individuals and Scope of Policy.........................................................................................13 204.2 Definitions.......................................................................................................................................13 204.2.1 Protected Classification...................................................................................................................13 204.2.2 Protected Activity............................................................................................................................14 204.2.3 Discrimination .................................................................................................................................14 204.2.4 Harassment.....................................................................................................................................14 204.2.4.1 Other Examples of Conduct That Might Constitute Harassment....................................................14 204.2.5 Retaliation.......................................................................................................................................15 204.3 Complaint Procedure ......................................................................................................................15 204.3.1 Proactive Approach.........................................................................................................................16 204.4 Right to File Report with Outside Administrative Agencies............................................................16 204.5 Confidentiality.................................................................................................................................17 204.6 Responsibilities ...............................................................................................................................17 206 Reasonable Accommodation and Interactive Process............................................................... 18 206.1 Reasonable Accommodation ..........................................................................................................18 206.2 Supporting Documentation or Certification ...................................................................................19 206.2.1 Reasonable Medical Documentation of Disability ..........................................................................19 206.2.2 Medical Certification Indicating the Need for a Reasonable Accommodation or Transfer Due to 3 Pregnancy or Related Conditions....................................................................................................19 206.2.3 Certification of Victim Status ..........................................................................................................19 206.3 Fitness for Duty Examinations.........................................................................................................20 206.3.1 Applicants........................................................................................................................................20 206.3.2 Current Employee ...........................................................................................................................20 206.3.3 Role of Health Care Provider...........................................................................................................21 206.3.4 Authorization for Use of Medical Information................................................................................22 206.3.5 Medical Information from the Employee or Applicant...................................................................22 206.4 Interactive Process..........................................................................................................................22 206.4.1 When to Initiate the Interactive Process ........................................................................................22 206.4.2 Interactive Communication ............................................................................................................23 206.4.2.1 Potential Accommodations for Applicants or Employees with Disabilities ....................................24 206.4.2.2 Potential Accommodations for Employees Affected by Pregnancy and Related Medical Conditions ........................................................................................................................................................24 206.4.2.3 Potential Accommodations for Employee-Victims of Domestic Violence, Sexual Assault, or Stalking............................................................................................................................................25 206.4.2.4 Potential Accommodations for Religious Creed, Religious Dress Practice, or Religious Grooming Practice ...........................................................................................................................................26 206.4.3 Determination.................................................................................................................................26 206.5 Access to Medical Information Regarding Fitness for Duty ............................................................27 208 Whistleblower Protection ........................................................................................................ 27 208.1 Policy...............................................................................................................................................27 208.2 Policy Coverage...............................................................................................................................27 208.3 Definitions.......................................................................................................................................28 208.4 Complaint Procedure ......................................................................................................................29 300 CLASSIFICATION POLICIES .........................................................................................29 302 Classification Plan..................................................................................................................... 29 302.1 Classification Plan ...........................................................................................................................29 302.2 Reclassification................................................................................................................................29 400 RECRUITMENT, SELECTION, AND APPOINTMENT...........................................31 402 Recruitment, Selection and Appointment Policy ...................................................................... 31 402.1 Job Announcement.........................................................................................................................31 402.2 Application Forms...........................................................................................................................32 402.3 Disqualification of Applications.......................................................................................................33 402.3.1 Criminal Conviction Check ..............................................................................................................33 402.4 Employment Examinations .............................................................................................................34 402.5 Eligibility Lists..................................................................................................................................35 402.6 Appointments .................................................................................................................................35 402.6.1 Probationary Appointment.............................................................................................................36 402.6.2 Probationary Period for Promotional Appointments......................................................................36 4 500 EMPLOYMENT OF RELATIVES OR SPOUSES/ DOMESTIC PARTNERS.....37 502 Employment of Relatives, Spouses, Domestic Partners............................................................ 37 502.1 Policy...............................................................................................................................................37 502.2 Definitions.......................................................................................................................................37 502.3 Employment of Relatives................................................................................................................38 502.4 Spouses or Domestic Partners........................................................................................................38 502.5 Marriage or Domestic Partnership after Employment ...................................................................38 600 COMPENSATION AND PAYROLL PRACTICES......................................................40 602 Work Schedules and Attendance.............................................................................................. 40 602.1 Work Schedules...............................................................................................................................40 602.2 Meal Period.....................................................................................................................................40 602.3 Rest Period......................................................................................................................................41 602.4 Lactation Break Time and Location.................................................................................................42 602.4.1 Lactation Accommodation ..............................................................................................................42 602.4.2 Storage of Expressed Milk...............................................................................................................44 602.5 Advance Request for Permission to Deviate from Regular Work Hours.........................................44 602.6 Notification of Unforeseen Late Arrival or Absence .......................................................................44 602.7 Unauthorized Absence is Prohibited...............................................................................................45 602.7.1 Unauthorized Absence is Prohibited in the Event of an “Emergency Condition”...........................45 602.8 Excessive Tardiness/Absenteeism and Abuse of Leave ..................................................................46 604 Work Week, Overtime and Compensatory Time Off................................................................. 47 604.1 Work Week .....................................................................................................................................47 604.1.1 Work Week for 9/80 Work Schedule ..............................................................................................47 604.1.2 Work Period for Fire and Police ......................................................... Error! Bookmark not defined. 604.2 Overtime .........................................................................................................................................47 604.2.1 No Remote Access for Overtime-Eligible Employees......................................................................48 604.2.2 Prior Approval Required for Overtime............................................................................................48 604.3 Accurate Time Reporting ................................................................................................................48 604.4 No Volunteering of Work Time .......................................................................................................48 604.5 Compensatory Time Off..................................................................................................................49 700 PERFORMANCE EVALUATION POLICIES..............................................................51 702 Performance Evaluations.......................................................................................................... 51 702.1 Performance Evaluations................................................................................................................51 702.2 Probationary Employee Performance Evaluations .........................................................................51 702.3 Performance Evaluation Meeting ...................................................................................................51 702.4 No Appeal Right ..............................................................................................................................51 800 LEAVES OF ABSENCES ....................................................................................................53 802 Vacation Leave and Holidays.................................................................................................... 53 802.1 Vacation Leave ................................................................................................................................53 802.2 Limitations on Vacation Leave Accrual ...........................................................................................53 802.3 Scheduling of Vacation Leave .........................................................................................................54 802.4 Unused Vacation Leave upon Separation .......................................................................................54 5 802.5 Holidays...........................................................................................................................................54 802.6 Effect of Holiday on Vacation Leave ...............................................................................................55 802.7 Floating Holidays.............................................................................................................................55 802.8 Pay for Holidays ..............................................................................................................................56 804 Sick Leave................................................................................................................................. 56 804.1 Purposes for Sick Leave...................................................................................................................56 804.2 Terms of Sick Leave.........................................................................................................................58 806 Family and Medical Care Leaves............................................................................................... 62 806.1 Statement of Policy; Concurrent Running of Leave under the Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”) ................................................................62 806.2 Definitions.......................................................................................................................................63 806.3 Reasons for Leave ...........................................................................................................................68 806.4 Employees Eligible for Leave...........................................................................................................70 806.5 Amount of Leave.............................................................................................................................70 806.6 Minimum Duration of Leave ...........................................................................................................71 806.7 Parents Both Employed by the City of Point Arena ........................................................................71 806.8 Employee Benefits While On Leave ................................................................................................72 806.9 Substitution of Paid Accrued Leaves...............................................................................................73 806.9.1 Employee’s Right to Use Paid Accrued Leave Concurrently with Family Leave..............................73 806.9.2 City of Point Arena’s Right to Require an Employee to Use Paid Leave When Using FMLA/CFRA Leave ...............................................................................................................................................74 806.9.3 City of Point Arena’s Right to Require an Employee to Exhaust FMLA/CFRA Leave Concurrently With Other Leaves ..........................................................................................................................74 806.9.4 City of Point Arena’s and Employee’s Rights if an Employee Requests Accrued Leave without Mentioning FMLA or CFRA..............................................................................................................75 806.10 Medical Certification/ Recertification.............................................................................................75 806.11 Time to Provide a Medical Certification..........................................................................................77 806.12 Consequences for Failure to Provide an Adequate or Timely Certification....................................77 806.13 [Personnel Officer’s] Review of the Contents of Medical Certification for Employee’s Own Serious Health Condition .............................................................................................................................78 806.14 Second and Third Medical Opinions for Employee’s Own Serious Health Condition.....................78 806.15 Intermittent Leave or Leave on a Reduced Leave Schedule ...........................................................79 806.16 Employee Notice of Leave...............................................................................................................80 806.17 Reinstatement upon Return from Leave ........................................................................................80 806.18 Required Forms...............................................................................................................................82 808 Leave Because of Pregnancy, Childbirth, Related Medical Condition, or Reproductive Loss..... 82 808.1 Amount of Leave.............................................................................................................................82 808.2 Notice & Certification Requirements..............................................................................................83 808.3 Compensation during Leave ...........................................................................................................83 808.4 Benefits during Leave......................................................................................................................84 808.5 Reinstatement.................................................................................................................................85 810 Other Leaves ............................................................................................................................ 87 810.1 Management Leave ........................................................................................................................87 810.2 Jury Duty Leave/Subpoenaed or Court-Ordered Witness Leave ....................................................87 810.2.1 Overtime-Eligible Employees..........................................................................................................87 810.3 Other Court or Administrative Proceeding Appearances ...............................................................88 810.3.1 Regarding Agency Duties ................................................................................................................88 810.3.2 Regarding Employee-Initiated Proceedings....................................................................................89 6 810.3.3 Regarding Crime Victim/Victim Family Member Court Attendance Leave.....................................89 810.3.4 Regarding Crime Victim/Family Member Victims’ Rights Proceedings Leave ................................90 810.4 Leave for Victims of Domestic Violence, Sexual Assault, Stalking or Other Crimes to Obtain Restraining Orders or Injunctive Relief ...........................................................................................90 810.4.1 Leave for Victims of Domestic Violence, Sexual Assault, Stalking or Other Crimes to Obtain Medical Attention or Counseling or Safety Planning ......................................................................91 810.5 Bereavement Leave ........................................................................................................................92 810.6 Military Leave..................................................................................................................................93 810.7.1 School or Licensed Day Care Activity Leave ....................................................................................93 810.7.2 Child Suspension Leave...................................................................................................................94 810.8 Paid Administrative Leave...............................................................................................................94 810.9 Leave of Absence without Pay Must Be Authorized by Law or these Policies................................95 810.10 Industrial Injury Leave.....................................................................................................................95 810.10.1 Employees Not Covered by Labor Code Section 4850....................................................................95 810.10.1.1 Coordination of Benefits.................................................................................................................95 810.10.1.2 Accrual of Sick and Vacation Leave Continues While on Paid Leave ..............................................96 810.10.1.3 Unpaid Leave and Continuation of Health Care Benefits................................................................96 810.10.2 Employees Covered by Labor Code Section 4850.............................. Error! Bookmark not defined. 810.10.2.1 Coordination of Benefits after 4850 Leave ........................................ Error! Bookmark not defined. 810.11 Time Off to Vote..............................................................................................................................96 900 RESIGNATION, JOB ABANDONMENT, LAYOFF, AND SEPARATION..........97 902 Resignation, Job Abandonment, Layoff and Separation............................................................ 97 902.1 Types of Separation ........................................................................................................................97 902.2 Probationary Release ......................................................................................................................97 902.3 Release of [Seasonal/Temporary/Extra Help Employees] ..............................................................98 902.4 Resignation......................................................................................................................................98 902.5 Retirement......................................................................................................................................98 902.6 Job Abandonment...........................................................................................................................99 902.7 Layoff...............................................................................................................................................99 902.7.1 Order of Layoffs ............................................................................................................................100 902.7.2 Notification of Layoff ....................................................................................................................100 902.7.3 Displacement ................................................................................................................................100 902.7.4 Transfer.........................................................................................................................................101 902.7.5 Appeal ...........................................................................................................................................101 902.8 Non-Disciplinary Separation .........................................................................................................102 902.9 Disciplinary Separation .................................................................................................................102 902.10 Return of City Property .................................................................................................................102 902.11 Job References/Verification of Employment ................................................................................102 1000 DISCIPLINE ........................................................................................................................ 103 1002 Causes for Discipline and Procedures..................................................................................... 103 1002.1 Causes for Discipline .....................................................................................................................103 1002.2 Types of Counseling, Reprimands and Discipline..........................................................................105 1002.3 Discipline Procedures....................................................................................................................107 1002.4 Discipline Appeal Procedures........................................................................................................109 1100 GRIEVANCES..................................................................................................................... 113 7 1102 Grievance Procedures............................................................................................................. 113 1102.1 Definition of a Grievance ..............................................................................................................113 1102.2 Statement of the Grievance..........................................................................................................113 1102.3 Timelines.......................................................................................................................................114 1102.4 Procedures....................................................................................................................................114 1200 MISCELLANEOUS POLICIES...................................................................................... 115 1202 Personnel Files ....................................................................................................................... 115 1202.1 Confidential City of Point Arena Files............................................................................................115 1202.2 Notification of Changes.................................................................................................................115 1202.3 Access to Applicant or Employee Medical Information ................................................................116 1202.4 Employee Access to Personnel File...............................................................................................116 1202.5 Limitations on Access or Copying of Personnel File......................................................................117 1204 Limitations on Outside Employment ...................................................................................... 117 1204.1 No Outside Employment Without Prior Approval ........................................................................117 1204.2 Authorization and Appeal Process................................................................................................117 1204.3 Prohibited Outside Activities ........................................................................................................118 1204.4 Changes in Outside Employment Status.......................................................................................119 1204.5 Revocation / Suspension of Outside Employment Authorization.................................................119 1204.6 Use of City of Point Arena Equipment Prohibited.........................................................................120 1206 Limitations on Political Activity .............................................................................................. 120 1206.1 No Solicitation During Work Hours or City of Point Arena Offices ...............................................120 1206.2 No Targeted Solicitation of City of Point Arena Officers or Employees........................................120 1206.3 No Political Activity in Uniform.....................................................................................................121 1206.4 No Political Activity on City of Point Arena Property or Work Hours ...........................................121 1208 Prohibitions on Drugs and Alcohol in the Workplace.............................................................. 121 1208.1 Purpose and Scope........................................................................................................................121 1208.2 Drug- and Alcohol-Free Awareness Program................................................................................122 1208.3 Prohibited Conduct.......................................................................................................................122 1208.4 Drug and Alcohol Testing ..............................................................................................................124 1210 Use of City of Point Arena Equipment or Resources ............................................................... 126 1210.1 Policy and Applicability .................................................................................................................126 1210.2 Agency Equipment or Resources ..................................................................................................126 1210.3 No Expectation of Privacy .............................................................................................................126 1210.4 Appropriate Use Only -- No Misuse ..............................................................................................127 1210.5 City of Point Arena Email Address Must be Used for City of Point Arena Business......................128 1210.6 Incidental Personal Use of City of Point Arena Communications Equipment Permitted..............129 1212.1 Safe and Secure Workplace ..........................................................................................................130 1212.2 Prohibited Behavior ......................................................................................................................131 1212.3 “Workplace Violence” ...................................................................................................................131 1212.4 Incident Reporting Procedures .....................................................................................................132 1212.5 Investigation..................................................................................................................................132 1212.6 Prevention.....................................................................................................................................132 1214 Appearance Standards ........................................................................................................... 133 1214.1 Basis for Standards........................................................................................................................133 1214.2 Dress Code ....................................................................................................................................133 8 1214.3 Tattoos..........................................................................................................................................135 1214.4 Piercing..........................................................................................................................................135 1216 Teleworking Policy ................................................................................................................. 135 1216.1 Purpose .........................................................................................................................................135 1216.2 Definitions.....................................................................................................................................136 1216.3 Scope of Policy ..............................................................................................................................136 1216.4 Voluntary Teleworking Arrangements..........................................................................................137 1216.4.1 Eligibility Criteria ...........................................................................................................................137 1216.4.2 Process for an Employee to Request to Telework ........................................................................138 1216.4.3 Final Determination; No Right to Appeal......................................................................................138 1216.4.4 Approval of Requests; Voluntary Telework Agreement ...............................................................138 1216.5 Mandatory Teleworking Arrangements during Exigent Circumstances........................................139 1216.6 Duties, Obligations and Responsibilities for Teleworking Employees ..........................................139 1216.6.1 General Duties, Obligations, and Responsibilities ........................................................................140 1216.6.2 Work Schedule, Overtime, Leave, Benefits...................................................................................140 1216.6.3 Space and Equipment, Information Security, Confidentiality.......................................................141 1216.6.4 Miscellaneous ...............................................................................................................................142 1218 Reimbursable Expenses for Certain Teleworking Employees.................................................. 143 1218.1 Purpose .........................................................................................................................................143 1218.2 Applicability of Policy to City of Point Arena Employees..............................................................143 1218.3 Teleworking Expenses Subject to Reimbursement.......................................................................143 1218.3.1 Process for Requesting Reimbursement for Teleworking Expenses Not Covered Above ............144 1218.4 Amount of Reimbursement for One-Time and Recurring Expenses.............................................144 1218.6 Amount of Reimbursement for Covered Teleworking Employees Who Do Not Telework on a FullTime Basis .....................................................................................................................................145 1218.7 Requirement that Employee Request Prior Approval for Reimbursable Expenses......................145 1220 Policy on Employee Use of Social Media................................................................................. 145 1220.1 Introduction and Purpose ............................................................................................................145 1220.2 Covered Individuals and Scope of Policy.......................................................................................145 1220.3 Social Media Use Requirements ...................................................................................................146 1220.4 Social Media Use Best Practices....................................................................................................146 1220.5 Violations of the Social Media Policy ............................................................................................146 9 100 Introduction and General Information Policies
102 Effect and Applicability of Personnel Policies
102.1 No Contract Right; City’s Discretion to Modify These Policies These Personnel Policies (“Policies”) do not create any contractual rights, or any express or implied employment contract between the City of Point Arena and the individuals covered by these Policies.

The City of Point Arena retains full and exclusive authority and discretion to modify these Policies at any time in accordance with law.
102.2 Applicability of Policies
These Policies shall apply with equal force to all City of Point Arena employees unless expressly exempted or excluded herein.

Independent contractors, volunteers, and City Councilmembers are not City of Point Arena employees, and are therefore not covered by the Policies included herein. 102.3 Employee Acceptance of Policies and Revisions to Policies As a condition of employment, the City of Point Arena requires that each employee read and, if necessary, request clarification regarding these Policies.

Each employee must sign a statement of receipt acknowledging the following: (1) they have received a copy, or has been provided access to the Policies; and (2) they understand that they are responsible for reading and becoming familiar with the contents of the Policies, as they are currently drafted as well as with all subsequent revisions to the Policies. 104 Delegation of Authority
104.1 Delegation of Appointing and Personnel Authority to City Manager The City Council delegates to the City Manager, the authority to authorize employment, establish job responsibilities, and perform other personnel actions as to all subordinate employees in accordance with all federal and state laws and regulations and these Policies.

The City Manager may delegate responsibility to another employee to perform personnel actions in accordance with this section.
104.2 Retention of Personnel Authority as to Certain Personnel 10 The City Manager directly reports to the City Council. The City Council retains final authority over all personnel actions related to these employees, as authorized by federal and state laws and regulations and these Policies.

Commentary:

Appointing Authority: As provided above, this policy delegates to the City Manager the responsibility for personnel matters. However, the delegation of authority and responsibility does not apply to those employees who report directly to the elected officers, including members of the agency’s governing body as well as its officers. 106 Categories of Employees and Non-Employees
106.1 At-Will Employees
An at-will employee is one who serves at the pleasure of the appointing authority, has no property right in continued employment with the City of Point Arena, and is not entitled to any pre- or post-disciplinary procedural due process or evidentiary appeal.

At-will employees include the following employees:
(a) City Manager
(b) Assistant City Manager
(c) Employees whose positions are funded under a federal or state employment program (d) Employees designated as temporary or seasonal
(e) Probationary employees
106.2 Probationary Employee
A probationary employee is an employee who is serving a probationary period after beginning employment with the City of Point Arena or after being promoted to a higher job classification.

During the initial probationary period, a probationary employee serves at the pleasure of the City and has no property right in continued employment, and is not entitled to any pre- or postdisciplinary procedural due process or evidentiary appeal.

A probationary employee serving in the initial probationary period is an at-will employee. 106.3 For-Cause Employee
11 A for-cause employee is an employee who has satisfactorily completed the initial probationary period or the probationary period after being promoted to a higher job classification and cannot be disciplined, except when the City of Point Arena has cause to do so.

A for-cause employee has a property right in continued employment with the City of Point Arena, and is entitled to pre- and post-disciplinary procedural due process and evidentiary appeals in certain types of disciplinary proceedings that may result in a significant deprivation of property.
106.4 Full or Part-Time Employee
A full-time employee is an employee whose position is budgeted to work 40 hours per week.

Full-time employees are entitled to all benefits provided in these Policies.

A part-time employee is an employee whose position is budgeted to work less than 40 hours per week. Part-time employees may have different rights to leave and other benefits under the law or these Policies, depending on the number of hours they work.

Commentary:

Customize the Full-Time/Part-Time Definition: Public agencies possess the discretionary authority to establish a number lower than 40 to define the number of hours in a “full-time schedule” for overtime-eligible employees. For example, some agencies elect to establish a 38-hour workweek for full-time employees.

Agencies that elect to establish a lower number of hours in a “full-time schedule”, should make a corresponding revision to the number of hours in a “part-time schedule”.

Part-Time Employee Benefits: All part-time employees are entitled to certain statutorilycreated leave entitlements. (See Policies 802 – Vacation Leave and Holidays, 804 – Sick Leave, 806 – Family and Medical Care Leaves, 808 – Leave Because of Pregnancy, Childbirth, or Related Medical Condition, and 810 – Other Leaves.) The amount of leave that a part-time employee may receive under these laws may or may not be prorated to the hours the employee works. If a policy does not expressly provide for the proration of leave entitlements for employees who do not work a “full-time schedule”, then the part-time employee possesses the same leave entitlements as a full-time employee. 106.5 Temporary or Seasonal Employee
A temporary or seasonal employee is an at-will employee who is not appointed from an eligible list, but on a short term or seasonal basis that is not to exceed six (6) months.

A temporary or seasonal employee serves at-will, at the pleasure of the appointing authority, has no property right in continued employment, and is not entitled to any pre- or post-disciplinary procedural due process or evidentiary appeal.
12 106.6 Volunteer
A volunteer is not a City of Point Arena employee, but is instead an individual who provides services to the City of Point Arena for civic or philanthropic reasons and receives no compensation or benefits other than nominal fees and reimbursement of expenses.

A volunteer serves at-will and at the pleasure of the appointing authority, has no property right in continued employment, and is not entitled to any pre- or post-disciplinary procedural due process or evidentiary appeal.

All volunteers must complete a volunteer application form before assigned any volunteer work duties.
106.7 Independent Contractor
An independent contractor is not a City of Point Arena employee, and serves solely pursuant to a contract entered into by the City of Point Arena pursuant to the City’s purchasing policies and procedures.
200 Equal Employment Opportunity
202 Equal Employment Opportunity Policy
The City of Point Arena affords equal employment opportunity for all qualified employees and applicants to all terms of employment with the City of Point Arena, including, but not limited to, compensation, hiring, training, promotion, transfer, discipline and termination.

The City of Point Arena prohibits discrimination against employees and applicants for employment on the basis of the employee or applicant’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age (40 and over), sexual orientation, or military and veteran status or any other basis protected by law.

Any employee, volunteer, or applicant who believes they have experienced any form of employment discrimination or abusive conduct are encouraged to report the conduct immediately by using the complaint procedures provided in these Policies, or by contacting the Equal Employment Opportunity Commission (“EEOC”), or the Civil Rights Department (“CRD”). 204 Policy against Discrimination, Harassment and Retaliation; Complaint Procedure
204.1 Purpose
13 The City of Point Arena is committed to preventing discrimination, harassment and retaliation in the workplace.

The City of Point Arena has zero tolerance for any conduct that violates this policy. Conduct need not violate either federal or state law in order to constitute a violation of this policy.

A single act by a City of Point Arena employee may constitute a violation of this policy and provide sufficient grounds for the City of Point Arena to discipline the City employee.

This policy establishes a complaint procedure by which the City of Point Arena will investigate and resolve complaints of discrimination, harassment, and retaliation by and against City of Point Arena covered individuals. The City of Point Arena encourages all covered individuals to report any conduct that they believe violates this policy as soon as possible.

The City of Point Arena expressly prohibits any retaliation against an employee because they filed or supported a complaint or because they participated in the investigation or complaint resolution process. Individuals found to have retaliated against an employee in violation of this policy will be subject to appropriate sanction or disciplinary action, up to and including termination.
204.1.1 Covered Individuals and Scope of Policy
This policy covers the following individuals: applicants for employment at the City of Point Arena; City of Point Arena employees regardless of rank or title; elected or appointed officials of the City of Point Arena; interns; volunteers; and contractors.

This policy applies to all terms and conditions of employment, internships, and volunteer opportunities, including, but not limited to, selection, hiring, placement, promotion, disciplinary action, layoff, recall, transfer, leave of absence, compensation, and training. 204.2 Definitions
204.2.1 Protected Classification
This policy prohibits discrimination, harassment or retaliation because of an individual’s protected classification.
“Protected Classification” includes race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age (40 and over), sexual orientation, or military and veteran status, or any other basis protected by law.

This policy prohibits discrimination, harassment or retaliation for the following reasons: (1) an individual’s protected classification; (2) the perception that an individual has a protected classification; or (3) the individual associates with a person who has or is perceived to have a protected classification.
14 204.2.2 Protected Activity
This policy prohibits discrimination, harassment, and retaliation because of an individual’s protected activity.

Protected activity includes, but is not limited to, the following activity: (1) making a request for an accommodation for a disability; (2) making a request for accommodation for religious beliefs; (3) making a complaint under this policy; (4) opposing violations of this policy; or (5) participating in an investigation under this policy.
204.2.3 Discrimination
This policy prohibits treating a covered individual differently and adversely because of the individual’s actual or perceived protected classification; because the individual associates with a person who is or is perceived to be a member of a protected classification; or because the individual participates in a protected activity as defined in this policy. 204.2.4 Harassment
This policy prohibits harassment of a covered individual because of the individual’s actual or perceived protected classification. Harassment includes, but is not limited to, the following conduct:
(a) Derogatory, offensive or inappropriate speech, such as epithets, slurs or stereotypical comments, or verbal propositions made on the basis of the individual’s protected classification. This includes, but is not limited to, comments, stories, and jokes about appearance, dress, physical features, gender identification, and race. (b) Physical acts, such as assault, impeding or blocking movement, offensive touching, or physical interference with normal work or movement. This includes, but is not limited to, pinching, grabbing, patting, or making explicit or implied job threats or promises in return for submission to physical acts.
(c) Visual acts, such as derogatory, offensive or inappropriate, posters, cartoons, emails, pictures or drawings related to a protected classification. (d) Unwanted sexual advances, requests for sexual favors and other acts of a sexual nature, where submission is made a term or condition of employment, where submission to or rejection of the conduct is used as the basis for employment decisions, or where the conduct is intended to or actually does unreasonably interfere with an individual’s work performance or create an intimidating, hostile, or offensive working environment. 204.2.4.1 Other Examples of Conduct That Might Constitute Harassment Harassment includes conduct that another individual who is a member of the protected classification would find unwelcome or unwanted. Harassment may include the following:
15 (a) Conduct that is not intended as to harass. Conduct may violate this policy if the conduct is directed at, or implicates a protected classification and the recipient finds the conduct to be offensive or inappropriate, even if its well-intentioned conduct (e.g., gifts, overattention, endearing nicknames, hugs). (b) Conduct to which the recipient appears to have consented. The City of Point Arena does not recognize as a defense that the recipient appeared to have consented to the conduct at issue by failing to protest about the conduct. A recipient may not protest offensive or inappropriate conduct for many legitimate reasons, including, but not limited to, the need to avoid being perceived as insubordinate or to avoid being ostracized or subjected to retaliation.
(c) Conduct about which no employees previously complained. The fact that no employee previously complained about the same or substantially similar conduct does not mean that the conduct is inoffensive or appropriate nor does that fact preclude an employee from complaining about such conduct if it is repeated.
(d) Conduct witnessed by a third party or about which a third party learns, even if they did not witness such conduct. Visual, verbal, or physical conduct between two (2) people who do not find such conduct to be offensive or inappropriate may constitute harassment of a third party witnesses such conduct or learns about the conduct later and finds the conduct to be offensive or inappropriate. Conduct can constitute harassment even if it is not explicitly or specifically directed at a particular individual. (e) Conduct can constitute harassment even if the individual has no intention to harass.

Conduct that may be well-intentioned conduct (e.g., gifts, over-attention, endearing nicknames, hugs) may nevertheless constitute harassment if the conduct is directed at, or implicates a protected classification, and if the individual finds such conduct inappropriate or offensive.
204.2.5 Retaliation
Retaliation occurs when an employer takes adverse action against a covered individual because of the individual’s protected activity as defined in this policy. “Adverse action” may include, but is not limited to, the following actions: (1) disciplinary action; (2) counseling; (3) taking sides because an individual has reported harassment or discrimination; (4) spreading rumors about a complainant or about someone who supports or assists the complainant or who participates in the investigation; (5) shunning or avoiding an individual who reports harassment or discrimination; or (6) making real or implied threats of intimidation to prevent or deter an individual from reporting harassment or discrimination. 204.3 Complaint Procedure
16 A covered individual who believes they have been subjected to discrimination, harassment or retaliation may make a complaint, either orally or in writing, to any supervisor or manager or to the City Manager without regard to any chain of command.

Any supervisory or management employee who receives a harassment complaint should immediately notify the City Manager. Upon receiving notification of a complaint regarding discrimination, harassment or retaliation, the City Manager or their designee will complete and/or delegate the following steps:
(a) Authorize and supervise the investigation of the complaint and/or investigate the complaint. The investigation will usually include interviews with the following individuals: (1) the complainant; (2) the accused (i.e., the subject of the investigation); (3) witnesses to the conduct at issue in the complaint; and (4) other persons who have relevant knowledge concerning the allegations in the complaint. (b) Review the factual information gathered during the investigation to determine whether the alleged conduct violated the policy giving consideration to all factual information, the totality of the circumstances, including the nature of the conduct, and the context in which the alleged incidents occurred.
(c) Prepare a summary report of the determination as to whether the conduct violated this policy and provide such report to the appointing authority (i.e., City Manager). If discipline or sanctions are imposed, the level of discipline or sanctions will not be communicated to the complainant.
(d) If conduct in violation of this policy occurred, take or recommend to the appointing authority prompt and effective remedial action. The remedial action will be commensurate with the severity of the offense.
(e) Take reasonable steps to protect the complainant from further harassment, discrimination or retaliation.

If the City Manager is accused, the Mayor and City Attorney will complete and/or delegate the above enumerated steps.
204.3.1 Proactive Approach
The City of Point Arena takes a proactive approach to potential policy violations and will conduct an investigation if its employees become aware that harassment, discrimination or retaliation occurred or may be occurring, regardless of whether the recipient or third party reports a potential violation.
204.4 Right to File Report with Outside Administrative Agencies An individual possesses the right to report workplace harassment, discrimination or retaliation to the EEOC and/or the CRD.
17 These administrative agencies provide a complaint process as well as certain legal remedies where the applicable agency determined that a violation of the law occurred.

The nearest EEOC and CRD offices are listed on the internet and in the government section of the telephone book. Employees may also check the posters that are located on City of Point Arena bulletin boards for EEOC and CRD office locations and telephone numbers. 204.5 Confidentiality
The City of Point Arena will make every effort to assure the confidentiality of complaints made under this policy to the greatest extent allowed by law. However, complete confidentiality may not be possible because of the City’s need to investigate the complaint and provide the subject of the complaint their due process rights, which include providing the subject of the investigation a copy of the complaint after the initial investigatory interview, if requested.

The City of Point Arena expressly prohibits an employee who is interviewed during the course of an investigation from attempting to influence other employees, including employees who may have witnessed the underlying conduct at issue, while the investigation is open and ongoing.

The City of Point Arena will not disclose a completed investigation report except as it deems necessary to support a disciplinary action, to take remedial action, to defend itself in adversarial proceedings, or to comply with the law or court order.
204.6 Responsibilities
(a) Each employee is responsible for the following:
1) Treating all individuals in the workplace or on City of Point Arena worksites with respect and consideration.
2) Modeling behavior that conforms to this policy.
3) Participating in periodic trainings on personnel matters. 4) Cooperating with the City’s investigations pursuant to this policy by responding fully and truthfully and in a timely manner to all questions posed during the investigation. 5) Taking no actions to influence the complainant or any potential witness while the City’s investigation is ongoing.
6) Reporting any act they believe in good faith constitutes harassment, discrimination or retaliation as defined in this policy to the City Manager. 18 (b) In addition to the responsibilities listed above, each supervisor is responsible for the following:
1) Informing employees under their supervision of this policy. 2) Taking all steps necessary to prevent harassment, discrimination and, retaliation from occurring, including, but not limited to, monitoring the work environment and taking immediate and appropriate action to stop violations (e.g., removing inappropriate pictures or correcting inappropriate language).
3) Receiving and responding to complaints in a uniformly fair and serious manner. 4) Documenting the steps taken to resolve such complaints. 5) Following up with those who have complained to ensure that the offensive conduct about which they complained has stopped and that there have been no reprisals or retaliation or threats of reprisals or retaliation.
6) Informing those who complain about harassment and/or discrimination of their option to contact the EEOC or CRD and file a complaint about such activity. 7) Assisting and/or advising employees regarding this policy. 8) Assisting in the investigation of complaints involving subordinate employee(s). 9) Where a complaint is substantiated, assisting in the development of a recommendation concerning an appropriate corrective or disciplinary action in accordance with these policies.
10) Implementing appropriate corrective or disciplinary actions. 11) Reporting potential violations of this policy to the City Manager, regardless of whether an employee complained about such conduct.
12) Participating in periodic training and scheduling employees for training. 206 Reasonable Accommodation and Interactive Process
206.1 Reasonable Accommodation
Absent the imposition of undue hardship to the City of Point Arena or its operations or the existence of a direct threat to either the health and safety of employee requesting the accommodation or others, the City of Point Arena will provide employment-related accommodations to the following employees and applicants for employment:
19 (a) Qualified individuals with disabilities, both applicants and employees, to enable them to perform essential job functions; and
(b) Employees with conditions related to pregnancy, childbirth, or a related medical condition, if she so requests, and with the advice of her health care provider; and (c) Employee victims of domestic violence, sexual assault, or stalking to promote the safety of the employee victim while at work; and
(d) Employees who request reasonable accommodation to address a conflict between religious belief or observance and any employment requirement. 206.2 Supporting Documentation or Certification
206.2.1 Reasonable Medical Documentation of Disability
If the disability or the need for reasonable accommodation is not obvious, the City of Point Arena may require the individual requesting such accommodation to provide reasonable medical documentation confirming the existence of the disability and the need for reasonable accommodation, along with the name and credentials of the individual’s health care provider. If the individual provides insufficient documentation, the City of Point Arena will do the following: (1) explain the insufficiency of the documentation provided; (2) allow the employee or applicant to supplement the documentation in order to remedy the issue with the documentation provided; and (3) pursue the interactive process only to the extent that the request for reasonable accommodation is supported by the medical documentation provided. 206.2.2 Medical Certification Indicating the Need for a Reasonable Accommodation or Transfer Due to Pregnancy or Related Conditions
If a pregnant employee, or an employee with a pregnancy-related condition, requests a reasonable accommodation or transfer due to pregnancy, the City of Point Arena will provide the employee with notice of the need for a medical certification within two business days after the employee’s request for accommodation. A medical certification confirming the need for a reasonable accommodation, including transfer, is sufficient if it contains: (1) a description of the requested accommodation or transfer; (2) a statement describing the medical advisability of the accommodation or transfer due to pregnancy; and (3) the date that the need for the accommodation or transfer will become necessary and the estimated duration of the accommodation or transfer.
206.2.3 Certification of Victim Status
An employee who is a victim of domestic violence, sexual assault, or stalking and who requests an accommodation to provide for their safety while at work must provide both of the following:
20 (a) A written statement signed by the employee or an individual acting on the employee’s behalf, to certify that the accommodation is to address victim-safety concerns while at work; and
(b) A certification demonstrating the employee’s status as a victim of domestic violence, sexual assault, or stalking, which can be in the form of: a police report indicating the employee’s victim status; a court order separating the perpetrator from the employee or that the employee has appeared in court for that purpose; or documentation from a medical professional or counselor that the employee is undergoing treatment for physical or mental injuries or abuse resulting from an act of domestic violence, sexual assault, or stalking.
206.3 Fitness for Duty Examinations
206.3.1 Applicants
After the City of Point Arena extends a conditional offer of employment to an applicant, the City of Point Arena may require the applicant to submit to a fitness for duty examination that is job-related, necessary for efficient operations of the agency, and required of all applicants for the job classification. The City of Point Arena will notify an applicant or employee who is required to pass a medical and/or psychological examination of their right to obtain a second opinion at their expense and that he/she may submit such second opinions for consideration. 206.3.2 Current Employee
The City Manager may require an employee to submit to a fitness for duty examination in order to determine whether the employee has a disability and is able to perform the essential functions of their job when there is significant evidence of the following:
(a) The employee’s ability to perform one or more essential functions of their job has declined; or
(b) Could cause a reasonable person to question whether an employee is still capable of performing one or more of their essential job duties, or is still capable of performing those duties in a manner that does not harm themselves or others.

Commentary:

Medical Examinations: The ADA and FEHA and prohibits requiring employees or applicants to undergo any medical examination unless the agency can prove that the examination is job-related and consistent with business necessity. (42 U.S.C. § 12112(d)(4).) (Gov. Code §12940(e) and (f); 2 C.C.R. § 11016(b).) In the case of an applicant, the examination must be given to all of those entering the same job classification. (Gov. Code § 12940(e)(3) and (f)(2).) The above policy uses the language that the courts have used to 21 apply the business necessity standard. (Brownfield v. City of Yakima (9th Cir. 2010) 612 F.3d 1140.)
Note that while the business necessity standard is a high standard, an agency may satisfy the standard before the employee’s work performance declines if the employer can point to evidence supporting a genuine reason to doubt that the employee can perform essential job functions. An employee’s behavior must be much more than merely annoying or inefficient to meet the business necessity standard. Requiring an employee to attend a psychological fitness for duty examination is more intrusive than a physical exam and should only be used where the agency has strong facts to question the employee’s fitness, with due consideration being given to the essential job duties of the position and the importance of mental fitness in the position.

Further, the costs borne by an employee in connection with any physical or psychological exams mandated by an employer must be reimbursed by the employer (Labor Code § 2802(a)) and time waiting for and undergoing the mandated examination constitutes hours worked by the employee and as such, is compensable. (29 C.F.R. § 785.43.) 206.3.3 Role of Health Care Provider
The City of Point Arena may request the applicant’s or employee’s health care provider to conduct a fitness for duty exam on the applicant or employee, or may request a City of Point Arena-selected health care provider to do so at the City of Point Arena’s expense. The City of Point Arena will allow an employee paid time off to attend the exam. The City of Point Arena will provide the heath care provider with a letter requesting a fitness for duty examination and a written description of the essential functions of the job. The examination will be limited to determining whether the applicant or employee can perform the essential functions of their position and any work restrictions and/or functional limitations that apply to the applicant or employee. The health care provider will examine the employee and provide the City of Point Arena with non-confidential information regarding whether:
(a) The applicant or employee has a disability within the meaning of the FEHA; (b) The applicant or employee is fit to perform essential job functions; (c) Workplace restrictions or functional limitations apply to the applicant or employee, and the duration of the work restrictions or functional limitations; (d) There are any reasonable accommodations that would enable the employee to perform essential job functions; and
(e) The employee’s continued employment poses a threat to the health and safety of themselves or others.
22 Should the health care provider exceed the scope of the City of Point Arena’s request and provide confidential health information, without valid consent of the applicant or employee, the City of Point Arena will return the report to the health care provider and request another report that includes only the non-confidential fitness for duty information that the City of Point Arena has requested.
206.3.4 Authorization for Use of Medical Information
During the course of a fitness for duty examination, the City of Point Arena will not seek or use information regarding an employee’s medical history, diagnoses, or course of treatment without an employee’s written authorization.

Commentary:

Confidentiality of Medical Information Act: The Confidentiality of Medical Information Act (“CMIA”) generally prohibits public agencies from using or disclosing “medical information” relating to an employee unless the employee first signs a valid authorization. (Civil Code §§ 56-56.37.) “Medical information” is information regarding an employee’s medical history, diagnoses, or course of treatment. (Civil Code § 56.05(g).) A valid authorization under the CMIA must meet specific criteria set forth in the statute. (Civil Code § 56.11.)
206.3.5 Medical Information from the Employee or Applicant If an employee or applicant submits medical information to the City of Point Arena from their own health care provider, the City Manager will not forward that information on to the health care provider who conducted the examination for the City of Point Arena, without the employee or applicant’s written authorization.

Upon receipt of the written authorization, the City Manager will request the City of Point Arena-paid health care provider to determine whether the information alters the original fitness for duty assessment.
206.4 Interactive Process
206.4.1 When to Initiate the Interactive Process
The City Manager will initiate the interactive process when:
(a) An applicant or employee with a known physical or mental disability or medical condition requests reasonable accommodation(s);
(b) The City of Point Arena otherwise becomes aware of the need for an accommodation through a third party (e.g., a doctor’s note requesting an accommodation), or by observation of the employee’s work;
23 (c) The City of Point Arena becomes aware of the possible need for an accommodation because the employee with a disability has exhausted workers’ compensation leave, Family and Medical Act leave, or other leave rights, but the employee and/or the employee’s health care provider indicate that further accommodation is still necessary for recuperative leave or other accommodation;
(d) An employee disabled by pregnancy, childbirth or related medical conditions requests a reasonable accommodation or transfer based on the advice of her health care provider; (e) An employee with a physical or mental disability, regardless of cause, fails to return to work following pregnancy disability leave;
(f) An employee-victim of domestic violence, sexual assault, or stalking requests a reasonable accommodation(s) for their safety at work;
(g) An employee requests an accommodation to address a conflict between religious belief, observance, or practice and any employment requirement; or (h) An employer is aware of the need for a reasonable accommodation for an employee or applicant’s religious beliefs, observance or practices.

Commentary:

Notice Requirements for the Interactive Process: Title 2 of the California Code of Regulations section 11069 provides for the notice requirements for the interactive process. (2 C.C.R. § 11069(c), (d).)
See the Commentary for Policy 206.1 – Reasonable Accommodation – for the Code sections pertaining to each type of employee covered by this policy. Note that the duty to initiate the interactive process is not limited to an actual request from an employee. Any of the preceding circumstances may be sufficient to trigger the need to conduct an interactive process. 206.4.2 Interactive Communication
After the occurrence of any of the above-stated circumstances that trigger the need to conduct an interactive process meeting, the City Manager will promptly arrange for a discussion or discussions, in person or via conference telephone call, with the applicant or employee and their designated representative, (if any). The purpose of the interactive communications will be to discuss in good faith all feasible potential reasonable accommodations. The City Manager will document these communications in writing.

Commentary:

Interactive Process Communications: Government Code section 12940, subdivision (n) and Title 2 of the California Code of Regulations section 11069, subdivision (a) provide for interactive process communications.
24 206.4.2.1 Potential Accommodations for Applicants or Employees with Disabilities Depending on the facts of each case, the interactive process analysis will generally begin with a review of possible reasonable accommodations that would enable the individual to retain their current job. The process will generally then move on to possible reasonable accommodations in other vacant jobs, for which the individual is qualified, if there is no reasonable accommodation in the current job that does not cause undue hardship, or that does not present a risk of harm to the individual or others. The City of Point Arena will consider accommodations that the applicant or employee suggests, but has the right to select and implement any reasonable accommodation that it deems effective. The range of potential reasonable accommodations includes, but is not limited to, the following:
(a) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities, including, but not limited to, the following: acquisition or modification of equipment or devices; adjustment or modifications of examinations, training materials or policies; and/or the provision of qualified readers or interpreters; (b) Job restructuring;
(c) Part-time or modified work schedules;
(d) Paid or unpaid leave of absence of a finite duration that is likely to enable the employee to return to work at the end of the leave;
(e) Preferential consideration to reassignment to a vacant, comparable position, except when such preference would violate a bona fide seniority system; (f) Reassignment to a vacant lower-paid position if there is no funded, vacant comparable position for which the individual is qualified for; or
(g) Reassignment to a temporary position, if the individual agrees. 206.4.2.2 Potential Accommodations for Employees Affected by Pregnancy and Related Medical Conditions
Depending on the facts of each case, the interactive process will attempt to identify and implement a reasonable accommodation that is consistent with the medical certification applicable to the applicant or employee. Whether an accommodation is reasonable is a case-bycase analysis that takes into account several factors, including, but not limited to: the employee’s medical needs; the duration of the needed accommodation; and the employer’s legally permissible past and current practices. The range of potential accommodations includes, but is not limited to, the following:
(a) Transfer to a less strenuous or hazardous position for the duration of the pregnancy; (b) Change in or restructuring of work duties, such as modifying lifting requirements; 25 (c) Providing more frequent breaks;
(d) Providing seating;
(e) Time off for medical appointments; and
(f) Transfer temporarily to a job with equivalent pay and benefits that the employee is qualified to perform in order to accommodate reduced work schedule or intermittent leave. However, a reduction in work hours may be considered a form of pregnancy disability leave and deducted from the employee’s four (4) month pregnancy disability leave entitlement.

Commentary:

Pregnancy-Related Accommodations: Government Code section 12945 and Title 2 of the California Code of Regulation sections 11040 and 11041 provides for reasonable accommodations for pregnancy, childbirth or related medical conditions.

Accommodation for Pregnancy is in Addition to Accommodation for Other Disabilities:

The right to take pregnancy disability leave under Government Code section 12945 (See Policy 808, Leave Because of Pregnancy, Childbirth, or Related Medical Condition) is separate and distinct from the right to take a leave of absence as a form of reasonable accommodation for a disability. For example, if an employee has depleted pregnancy disability leave and has a mental or physical disability, which may or may not be related to pregnancy, childbirth, or related medical conditions, the employee may be entitled to a reasonable accommodation for that disability. The potential right to further accommodation is not diminished by the employee’s use of accommodations due to pregnancy, childbirth or related medical conditions. (2 C.C.R. § 11047.)
Limitations on Pregnancy-Related Accommodations: An agency need not engage in the following conduct: (1) create additional employment that it would not have otherwise created to accommodate a pregnancy-related condition; (2) discharge another employee to free up a job; (3) violate the terms of a collective bargaining agreement; (4) transfer another employee with more seniority; or (5) promote or transfer an employee who is not qualified to perform the new job. An employer may accommodate a pregnant employee’s transfer request by transferring another employee, but there is no requirement to do so. (2 C.C.R. § 11041(a)(2)(B).)
206.4.2.3 Potential Accommodations for Employee-Victims of Domestic Violence, Sexual Assault, or Stalking
Depending on the facts of each individual case, the interactive process analysis will review all possible accommodations that would enhance the safety of the employee victim at work. In determining what accommodation is reasonable, the City of Point Arena will consider the 26 exigent circumstance or danger facing the employee. The City of Point Arena will consider the preferences of the employee to be accommodated, but has the right to select and implement any accommodation that it deems effective. The range of potential safety measure accommodations includes, but is not limited to, the following:
(a) Transfer, reassignment, modified schedule;
(b) Change in work telephone number;
(c) Change in location of work station;
(d) Installation of locks;
(e) Assistance in documenting domestic violence, sexual assault, stalking, or a crime that occurs in the workplace;
(f) The implementation of a safety procedure(s);
(g) Adjustment to job structure, workplace facility, or work requirement; and (h) Referral to a victim assistance organization.
206.4.2.4 Potential Accommodations for Religious Creed, Religious Dress Practice, or Religious Grooming Practice
Depending on the facts of each case, the interactive process analysis will review all possible accommodations that would resolve the conflict between the religious belief or observance and any employment requirement. The City of Point Arena will consider the preference of the employee or applicant, but has the right to select and implement any accommodation that it deems effective. The range of potential accommodations includes, but is not limited to, the following:
(a) Job restructuring or job reassignment (but not segregation from other employees or the public);
(b) Modification of work practices, including dress or grooming; (c) Allowing time off in an amount equal to the amount of non-regularly scheduled time the employee has worked in order to avoid a conflict with their religious observances; and (d) Allowing alternatives to union membership or payment of union dues. 206.4.3 Determination
After the interactive process communications, the City Manager will review the information received, and determine: whether all available information has been reviewed; whether all 27 potential accommodations that the applicant or employee has suggested have been considered; whether additional discussions with the applicant or employee would be helpful; whether the applicant’s or employee’s preferences have been taken into account; if there is a reasonable accommodation that would enable the applicant or employee to perform essential job functions without harming themselves or others; and if the accommodations would pose an undue hardship on City of Point Arena finances or operations. The City Manager will inform the applicant or employee of their determination in writing. The City Manager will use their discretion based upon the particular facts of each case.
206.5 Access to Medical Information Regarding Fitness for Duty Medical records and information regarding fitness for duty, or the need for an accommodation, will be maintained separately from non-medical records and information. Medical records and information regarding fitness for duty and the need for accommodation will be accessible only by the City Manager, the City of Point Arena’s legal counsel, first aid and safety personnel in case of emergency, and supervisors who are responsible for identifying reasonable accommodations. Medical records and information contained therein may be released pursuant to federal and state law.
208 Whistleblower Protection
208.1 Policy
The City of Point Arena prohibits all of the following conduct by City of Point Arena employees:
(a) Taking any retaliatory adverse employment action against an employee because the employee has or is believed to have disclosed information to any government or law enforcement agency, including to the City of Point Arena, if the employee has reasonable cause to believe that the information discloses a violation of federal or state law, or a violation or noncompliance with a local, state, or federal rule or regulation; (b) Preventing an employee from disclosing information to a government agency, including to the City of Point Arena, if the employee has reasonable cause to believe that the information discloses a violation of federal or state law, or a violation or noncompliance with a local, state, or federal rule or regulation;
(c) Retaliating against an employee for refusing to participate in any activity that would result in a violation of federal or state law, or a violation or noncompliance with a local, state, or federal rule or regulation; and
(d) Retaliating against an employee because the employee’s family member has, or is perceived to have engaged in any of the protected activities listed in (a)-(c) above. 208.2 Policy Coverage
28 This policy governs and protects City of Point Arena officials, officers, employees, seasonal/temporary/extra help employees, or applicants for employment. 208.3 Definitions
“Protected activity” means any of the following activities:
(a) Filing a complaint with a federal or state enforcement or administrative agency that discloses any information that the employee has reasonable cause to believe violates federal or state law or a violation or noncompliance with a local, state, or federal rule or regulation;
(b) Participating in or cooperating in good faith with a local, federal or state enforcement agency that is conducting an investigation in to alleged unlawful activity; (c) Testifying in good faith and with reasonable cause as a party, witness, or accused regarding alleged unlawful activity;
(d) Associating with another covered individual who is engaged in any of the protected activities enumerated here;
(e) Making or filing in good faith and with reasonable cause an internal complaint with the City of Point Arena regarding alleged unlawful activity; (f) Providing informal notice to the City of Point Arena regarding alleged unlawful activity; (g) Calling a governmental agency’s “whistleblower hotline” in good faith; (h) Filing a written complaint under penalty of perjury that the City of Point Arena has engaged in gross mismanagement, a significant waste of public funds, or a substantial and specific danger to public health or safety; and
(i) Refusing to participate in any activity that the employee reasonably believes would result in a violation of federal or state law, or a violation or noncompliance with a local, state, or federal rule or regulation.
“Adverse action” means, but is not limited to, the following actions:
(a) Real or implied threats of intimidation to attempt or prevent an individual from reporting alleged wrongdoing or because of actual or potential protected activity; (b) Refusing to hire an individual because of actual or potential protected activity; (c) Denying promotion to an individual because of actual or potential protected activity; (d) Taking any form of disciplinary action because of actual or potential protected activity; 29 (e) Extending a probationary period because of actual or potential protected activity; (f) Altering work schedules or work assignments because of actual or potential protected activity;
(g) Condoning hostility and criticism of co-workers and third parties because of actual or protected activity;
(h) Spreading rumors about a person because of that person’s actual or perceived protected activity; and
(i) Shunning or unreasonably avoiding a person because of that person’s actual or perceived protected activity.
208.4 Complaint Procedure
An applicant, employee, or seasonal/temporary employee who feels they have been retaliated against in violation of this policy should immediately report the conduct according to the complaint procedure in the City’s policy against discrimination, harassment or retaliation so that the complaint can be resolved fairly and quickly. Supervisors and managers have the same responsibilities as defined in the policy against discrimination, harassment or retaliation. 300 Classification Policies
302 Classification Plan
302.1 Classification Plan
The City Manager shall ascertain and record the duties and responsibilities of all positions and shall recommend a classification plan, including job descriptions, for such positions. The plan and any revisions thereof shall become effective upon approval of the City Manager.

Following the approval of the classification plan, the City Manager shall allocate every position to one of the classifications established by the plan.

When a new position is created, such position may not be filled, until the classification plan has been amended to provide for the new position.
302.2 Reclassification
The City Manager may initiate a job audit to determine whether the duties of a position have changed to such an extent that they necessitate reclassification of the position from the existing classification to a more appropriate classification. Upon completion of the job audit, the City 30 Manager shall make a recommendation regarding reclassification to the City Council or City Manager.

Commentary:

Addition and/or Revision of Classifications and Job Descriptions: This policy provides an orderly process for an agency to add or revise classifications and job descriptions. By requiring the Personnel Officer to be in charge of the creation and updating of the classification plan, the agency centralizes this function with the agency’s expert and promotes agency-wide consistency and fairness. The agency’s governing body or manager is required to approve new positions under the policy to ensure that each new position is budgeted and the procedure has been followed.
31 400 Recruitment, Selection, and Appointment
402 Recruitment, Selection and Appointment Policy
402.1 Job Announcement
The City Manager will prepare a job announcement to announce a proposed recruitment. The announcement may be posted on the City of Point Arena’s website and other locations the City Manager deems appropriate, depending upon whether the recruitment is open to the public or current employees only.

The announcement will include the following:
(a) The title and pay scale for the position;
(b) The nature of the work to be performed and essential job duties of the position; (c) The minimum qualifications, including whether the job is a promotional position; (d) A statement of the employment status of the position – for cause or at-will; (e) The last date that the City Manager will accept applications, if any; (f) The time, place, and type of the examination, if known, and if a medical examination, and/or a drug screen will be required following a conditional offer of employment; and (g) Such other information as determined in the discretion of the City Manager.

Commentary:

Pre-Employment Drug Testing: As a general matter, pre-employment testing of job applicants for illegal drug use is permitted only if: (1) all applicants for a position are required to test; (2) the employer can show a “special need” to justify a test that is not based upon a desire to have a drug-free workplace is not sufficient to justify a pre-employment drug test. (Loder v. City of Glendale (1997) 14 Cal.4th 846, 881-882.) A “special need” will likely exist for safety-sensitive positions and positions that supervise children. (Lanier v. City of Woodburn (9th Cir. 2008) 518 F.3d 1147.) The term “special need” has not been specifically defined by case law and agencies that are interested in conducting preemployment drug tests should consider, on a case-by-case basis, whether a pre-employment drug test is appropriate for any particular classification.

Provision of Pay Scales to Current Employees: SB 1162 (enacted in 2022; effective January 1, 2023) requires public and private employers with 15 or more employees to provide a pay scale for a position in any job posting. (Lab. Code § 432.3(c)(3).) “Pay scale” means the salary or hourly wage range that the employer reasonably expects to pay for the position. 32 (Lab. Code § 432.3(m)(1).) Current law requires an employer, upon reasonable request, to provide a position’s pay scale to an applicant applying for employment.

Employers should also note that SB 1162 also requires that, upon request, public employers with 15 or more employees provide an employee the pay scale for the position in which the employee is currently employed. (Lab. Code § 432.3(c)(2).) 402.2 Application Forms
Job applications shall require information describing an individual’s training, experience, and other pertinent information as deemed necessary to assess qualifications for the job. Applicants may be required to provide supplementary information, including, but not limited to, the following: answers to job-related questions; resume; licenses; certifications; diplomas; letters of recommendation; and references. All applications must be completed in full and signed, physically or electronically, by the person applying. The City Manager will not process any application which is not fully completed and signed. Should an applicant be appointed to a position, the supplemental information shall become a part of the individual’s permanent employment records.

Commentary:

Application Forms Cannot Request Conviction History: Under AB 1843 (enacted in 2016, effective January 1, 2017), employers are expressly prohibited from inquiring into or using as a factor in determining a condition of employment, a job applicant’s juvenile offense history. (Lab. Code § 432.7) Limited exceptions to this law apply to health facilities. In addition, this law does not apply to persons seeking employment or employed as peace officers or in other specified criminal justice agencies.

SB 1412 (enacted in 2018; effective January 1, 2019) confirms that an employer is not prohibited from seeking or receiving an applicant’s criminal conviction history, if the employer is required by law to conduct a criminal background check. However, SB 1412 limits the ability of an employer to gather such criminal conviction history only to those “particular convictions” that are either required by federal or state law to be reviewed or that would preclude the applicant from holding the position sought by federal or state law.

Cannot Consider Applicant’s Prior Marijuana Use: Under SB 700 (enacted in 2023; effective January 1, 2019) employers are expressly prohibited from inquiring into or using as a factor in determining a condition of employment, a job applicant’s prior use of cannabis. (Gov. Code § 12954(b).) Employers are also prohibited from using information regarding an applicant’s or employee’s prior cannabis use derived from a criminal background check, unless this is otherwise permitted under the State’s Fair Chance Law, other state laws, or other federal laws. (Gov. Code § 12954(c).) Limited exceptions to this law apply to individuals in the building and construction trades. (Gov. Code § 12954(a)(2).) 33 Work Authorization: SB 1001 (enacted in 2016; effective January 1, 2017) ensures that agencies may not request from applicants any work authorization documents other than those documents that may or must be requested under federal law. (Lab. Code § 1019.1) Salary History: AB 168 (enacted in 2017; effective January 1, 2018) prohibits public agencies from attempting to obtain information regarding a job applicant’s private sector salary history, from considering that salary history in determining whether to offer employment to an applicant, or what salary to offer an applicant. (Lab. Code § 432.3.) In addition, agencies, “upon reasonable request,” must provide the pay scale of a position to an applicant.
402.3 Disqualification of Applications
The City Manager may reject any application which: is not properly completed or incomplete; received after the application deadline; or indicates that the applicant does not meet the minimum qualifications for the position. Whenever an application is rejected, notice of such rejection shall be mailed or emailed to the applicant.
402.3.1 Criminal Conviction Check
After the City of Point Arena makes a conditional offer of employment, the City Manager may then request information about criminal convictions, except for misdemeanor marijuana-related convictions that are over two years old, or convictions that have been judicially sealed, eradicated, or expunged. Unless required by law, the City of Point Arena will not deny employment to any applicant solely because they have been convicted of a crime. The City of Point Arena may, however, consider the nature, date and circumstances of the offense, evidence of rehabilitation, as well as whether the offense is relevant to the duties of the position.

Commentary:

Case-by-Case Analysis of Convictions: AB 1008 (enacted in 2017; effective January 1, 2018) prohibits public agencies from requesting or considering conviction history until after the applicant has received a conditional offer of employment. (Gov. Code § 12952(a)(2); 2 CCR 11017.1.) Even then, the agency cannot ask about arrests not resulting in convictions (Lab. Code § 432.7), judicially sealed or expunged convictions, or about misdemeanor marijuana convictions over two years old. (Lab. Code §§ 432.7- 432.8; 2 CCR 11017.1.) Moreover, an agency cannot automatically disqualify any non-safety applicant because of a criminal conviction, but must review the following: (1) evidence of rehabilitation; (2) the nature and seriousness of the crime; (3) the age of the applicant at the time of the conviction; (4) the time elapsed since the conviction; and (5) whether the conviction is related to the duties required of the employment sought. (2 C.C.R. § 11017(d).) Convictions Related to Prior Marijuana Use: Under SB 700 (enacted 2023; effective January 1, 2024) it is unlawful for an employer to discriminate against a person in hiring, 34 termination, or any term or condition of employment, or otherwise penalize a person because of the person’s use of cannabis off the job and away from the workplace, except as specified. (Gov. Code § 12954(a)(1)(A)-(B).) SB 700 applies to information about a person’s prior cannabis use obtained from the person’s criminal history, unless the employer is permitted to consider or inquire about that information under the California Fair Employment and Housing Act or other state or federal law. (Gov. Code § 12954(c).) 402.4 Employment Examinations
(a) The City Manager will determine the manner and methods of administering employment examinations. Examinations may consist of: written tests; oral tests; performance tests; evaluations of prior training and performance, experience and/or education; interviews; working style assessments; practical exercises; file review; or any combination thereof.

The content of all examinations will be job-related and designed to test knowledge, skills or abilities that help predict successful completion of job duties. (b) The content of all examinations will be kept confidential prior to the administration of the examination. All applicants who are invited to the examination will be notified of the nature of the examination.
(c) An applicant with a disability may request accommodation in an examination process.

Following receipt of a request for accommodation, the City Manager may require additional information, such as reasonable documentation of the existence of a disability. (d) Failure in one part of the examination, or the failure to meet established standards described in the job announcement, may be grounds for declaring such applicant as failing in the entire examination or as disqualified for subsequent parts of an examination.

Each applicant will be notified by mail whether they will continue in the examination process.
(e) Applicants who meet the minimum qualifications and pass all examinations may be subject to a background and/or reference check.
35 Commentary:

Reasonable Accommodation: An applicant, who provides medical documentation that they have a disability, is entitled to request a reasonable accommodation for the examination process, if needed. (2 C.C.R. § 11069(c)(2).) FEHA regulations provide a listing of testing condition accommodations (e.g., accessible testing sites, use of Braille, interpreters, additional time, alternate tests or individualized assessments). (2 C.C.R. § 11072(b)(5).) Using a Vendor to Complete a Background-Reference Check: If the agency uses a vendor to complete a background check, then the agency must comply with the federal and state fair credit reporting laws (e.g., provide the applicant a disclosure that identifies the vendor, the applicant’s option to receive the background investigation report; and the applicant’s right to dispute the accuracy or completeness of the report.) (See Civil Code §§ 1785.20.5, 1786.10, 1786.16.)
402.5 Eligibility Lists
(a) After completion of an open or promotional examination for a classification, the City Manager will prepare an eligibility list consisting of the names of candidates who passed the examination. Eligibility lists shall become effective upon the certification by the City Manager.
(b) A person appearing on an eligible list will be mailed or emailed notice of their placement on the list.
(c) A person placed on an eligibility list shall be removed from the list if they so request in writing or fails to respond to notification of an opening within five days after notification.

It is the responsibility of the eligible person to keep the City Manager informed of their current physical or email address, or phone number.
402.6 Appointments
(a) The City Manager will make all appointments except for those classifications that report to the governing body. The City Manager has discretion to decide in what manner a vacancy shall be filled. Vacancies may be filled by reinstatement, promotion, transfer, demotion, appointment of temporary/seasonal employees, or from an appropriate eligibility list if available. No specific list shall have priority over other lists. The City Council will make appointments for those classifications that report to it. (b) When a position is to be filled from a promotional or open eligibility list, the City Manager may choose from the specified list one of the top three candidates on the eligibility list. If no person among the top three candidates indicates a willingness to accept the appointment, the City Manager may make the appointment from among the remaining names on the eligibility list, may request a new examination and establish a 36 new eligibility list, or may fill the position by any other method authorized by these Policies.
(c) Appointment to certain positions may be made contingent upon the applicant/employee passing a drug/alcohol test, and/or a job-related medical and/or psychological examination. Such examination shall only be required after a conditional offer of employment has been made.
(d) The person accepting appointment shall report to the City Manager or designee on the date designated by the City Manager. Otherwise, the applicant shall be deemed to have declined the appointment.

Commentary:

Agency Authority: The eligibility list and appointment policies set forth above give the agency maximum flexibility to make appointments. Eligibility lists have no set duration to allow the agency to freshen the candidate pool as desired.

Best Practice is to Conduct a Pre-Employment Drug Test After a Conditional Offer of Employment: This policy indicates that a pre-employment drug test will occur after a conditional offer of employment. While a drug test is not considered a medical examination, testing an applicant’s blood or urine for any other reason would constitute a medical examination and would likely be considered unlawful before a conditional offer. (Leonel v.

American Airlines, Inc. (9th Cir. 2005) 400 F.3d 702, 708-709.) As a result, the best practice is to conduct pre-employment drug testing after making a conditional offer of employment. 402.6.1 Probationary Appointment
(a) At-Will Status: The probationary period is part of the examination process and is used to determine whether work performance or work-related behavior meets the required standards of the position. A probationary employee may be rejected at any time during the probationary period with or without cause or reason, without notice or appeal or grievance. The probationary employee will be notified prior to the expiration of the probationary period that they have been rejected from probation. (b) Length of Probation: The probationary period is 12 months, 2080 hours of actual and continuous service. The probationary period is automatically extended by the length of any absence of one workweek or more. The probationary period can also be extended by the City of Point Arena at the discretion of the City Manager or their designee. 402.6.2 Probationary Period for Promotional Appointments (a) At-Will Status: A promotional probationary employee may be rejected at any time during the promotional probationary period with or without cause or reason, without notice or 37 appeal or grievance. If the employee fails to satisfactorily complete the probationary period in the promotional position, the employee may return to the position held prior to promotion at the range and step held prior to promotion, if there is a vacancy in the prior position, unless they are terminated for cause.
(b) Length of Probation: On accepting a promotion, an employee serves a new probationary period of six (6) months of actual and continuous service. The probationary period is automatically extended by the length of any absence of a week or more.

Commentary:

Establishment of Probationary Period: Your agency may set probationary periods for original appointments and for promotions for longer periods of time than the one (1) year and six (6) month periods listed in the policies above. Some agencies use an 18-month probation for initial appointment and a one-year probation for promotional appointments.

For more information on the procedures for rejection of a probationary employee 500 Employment of Relatives or Spouses/ Domestic Partners 502 Employment of Relatives, Spouses, Domestic Partners 502.1 Policy
The City of Point Arena regulates the employment and placement of relatives, spouses, and domestic partners so as to avoid conflicts of interest and to promote safety, security, supervision, and morale.
502.2 Definitions
(a) “Relative” means child, step-child, parent, grandparent, grandchild, brother, sister, halfbrother, half-sister, aunt, uncle, niece, nephew, or in-laws of those enumerated by marriage or domestic partnership.
(b) “Spouse” means one of two persons to a marriage, or two people who are registered domestic partners, as those terms are defined by state law. (c) “Supervisory relationship” means one in which one employee exercises the right or responsibility to control, direct, reward, or discipline another by virtue of the duties and responsibilities assigned to their City of Point Arena appointment.

Commentary:

Spouse: Family Code sections 297 and 300 provide the definition for the term “spouse”. (Fam. Code §§ 297; 300.)
38 Domestic Partners: SB 30 (enacted in 2019; effective January 1, 2020) amended Sections 297, 297.1, 298, 298.5, 298.6, 298.7, and 299.2 of the Family Code and repealed Section 299.3 of the Family Code. Effective January 1, 2020, domestic partners will no longer be required to be members of the same sex or be required to have one or both partners be over 62 years of age. Because California law confers that same benefit to registered domestic partners that are provided to married spouses, public agencies may have more employees who qualify for registered domestic partnership and may seek such benefits in the workplace.

For example, the California Paid Sick Leave law in Labor Code sections 245 through 249 allows an employee to use paid sick leave for the diagnosis, care, or treatment of an existing health condition or preventative care for a family member, including a registered domestic partner. Similarly, the California Family Rights Act (“CFRA”) allows an eligible employee to use job-protected leave to care for a registered domestic partner. Public agencies should be aware of the change in definition of who may enter into a domestic partnership for purposes of complying with California law and applying agency policies. 502.3 Employment of Relatives
The City of Point Arena will not appoint, promote or transfer a person to a position within the same department, division, or facility in which the person’s relative already holds a position, if any of the following would result:
(a) A direct or indirect supervisory relationship between the relatives; (b) The two employees having job duties which require performance of shared duties on the same or related work assignment;
(c) Both employees having the same supervisor; or
(d) A potential for creating an adverse impact on supervision, safety, security, morale or efficiency.
502.4 Spouses or Domestic Partners
The City of Point Arena will not appoint, promote, or transfer a person, to the same department, division, or facility in which the person’s spouse or registered domestic partner already holds a position, if such employment would result in any of the following:
(a) One spouse or domestic partner being under the direct supervision of the other spouse or domestic partner; or
(b) Potential conflicts of interest or hazards for married persons or those in domestic partnership which are greater than for those who are not married or in domestic partnerships. 502.5 Marriage or Domestic Partnership after Employment 39 (a) Transfer: If two City of Point Arena employees who work in the same department later become spouses or domestic partners, the City Manager has discretion to transfer one of the employees to a similar position in another department. Although the wishes of the two employees will considered, the City Manager retains sole discretion to determine which employee will be transferred based upon City of Point Arena needs for supervision, safety, security or morale. Any such transfer that results in a salary reduction is not disciplinary and is not subject to any grievance or appeal, or pre- or postdisciplinary appeal due process. (b) Separation: If continuing employment of both employees, who work in the same department and who later become spouses or domestic partners, cannot be accommodated in a manner the City Manager finds to be consistent with the City of Point Arena’s interest in the promotion of supervision, safety, security, or morale, then the City Manager retains sole discretion to separate one employee from City of Point Arena employment. Absent the resignation of one employee, the less senior employee will be separated. Any such separation is not considered to be disciplinary and is not subject to any grievance or appeal, or pre- or post-disciplinary appeal due process.

Commentary:

Greater Restrictions Are Permissible for Family Members who are Not Spouses or Domestic Partners: California’s anti-discrimination law prevents discrimination on the basis of marital or domestic partner status. (Gov. Code § 12940(a)(3)(A); 2 C.C.R. § 11057(a), (b).) There is no such prohibition on discrimination, however, as to other family relationships. As a result, an agency can place tougher hiring and employment placement restrictions on non-spouse or non-domestic partner relationships, than are permissible for spouse or domestic partner relationships. An agency must be able to justify hiring or placement decisions regarding spouses or domestic partners by showing that the placement of the spouses or domestic partners together or under the same supervision would disrupt supervision, safety, security, or morale. For example, placing a married dispatcher with their police officer spouse or domestic partner on the same shift would potentially compromise the safety of all officers on the shift.
40 600 Compensation and Payroll Practices
602 Work Schedules and Attendance
602.1 Work Schedules
Work schedules are determined at the discretion of the City Manager and are subject to change with or without notice, according to the needs of the department or City of Point Arena. An overtime-eligible employee shall be in attendance and at work during the hours specified by the supervisor.
602.2 Meal Period
A one (1) hour non-compensated meal period will be provided to all full-time overtime-eligible employees who work at least an eight-hour work day. A 30-minute non-compensated meal period will be provided to all overtime-eligible full-time employees who work more than five (5) hours, but less than eight (8) hours during the workday. Overtime-eligible employees are responsible for taking their meal period at a time designated by the supervisor.

Commentary:

Length of Meal Period: Your agency can shorten the meal period for full-time employees to no less than 30 minutes, if desired. The FLSA allows a meal period to be unpaid if the mealtime is at least 30 minutes and if the employee is completely relieved from work/duty. (29 C.F.R. § 785.19(a).) There is no requirement that the employee be able to leave the workplace for the meal period. (29 C.F.R. § 785.19(b).) Note that the California wage orders regarding meal periods do not apply to public agencies. (Wage Order 4, at § 1(B).) Health Care Employers: SB 1334 (enacted in 2022; effective January 1, 2023) extends obligations related to the provision of unpaid meal periods to public sector employers of health care employees. (Lab. Code § 512.1(a), (e)(2).)
SB 1334 entitles employees who provide direct patient care or support direct patient care in a general acute care hospital, clinic, or public health settings to the following meal periods:
one (1) unpaid 30-minute meal period on shifts over five (5) hours and a second (2nd) unpaid 30-minute meal period on shifts over 10 hours. (Lab. Code § 512.1(a), (e)(1).) Such meal period entitlements may be waived by mutual agreement of the employer and employee. (Lab.

Code § 512(a).)
SB 1334 imposes penalties on employers that fail to provide employees the meal periods to which they are entitled. (Lab. Code § 512.1(c).) The penalties associated with noncompliance is one (1) hour of pay at the employee’s regular rate of pay for each workday that the employer does not provide the meal period. (Lab. Code § 512.1(c); IWC Wage Order

4. Section 11; IWC Wage Order 5, Section 11.)
41 Given the lack of clarity in the Labor Code concerning the scope of this new statutory obligation and the potentially significant liability associated with it, we recommend that employers that are or may be subject to it consult with legal counsel. 602.3 Rest Period
A 15-minute compensated rest period will be provided to all overtime-eligible employees for each four-hour period of service. The rest period shall be taken at a time designated by the employee’s supervisor. Rest periods may not be combined to shorten the workday or to extend the meal period.

Commentary:

Length of Rest Period: The FLSA requires that employees be paid for break times of up to 20 minutes. (29 C.F.R. § 785.18.) Note that the California wage orders regarding rest periods do not apply to public agencies. (Wage Order 4, at § 1(B).) Health Care Employers: SB 1334 (enacted in 2022; effective January 1, 2023) extends obligations related to the provision of rest periods to public sector employers of health care employees. (Lab. Code § 512.1(b), (e)(2).)
SB 1334 entitles covered employees to a rest period based on the total hours worked daily at the rate of 10 minutes net rest time per four (4) hours or major fraction thereof as provided by Industrial Welfare Commission (“IWC”) Wage Orders Number 4 and 5. (Lab. Code § 512.1(b).)
SB 1334 imposes penalties on employers that fail to provide employees the rest periods to which they are entitled. (Lab. Code § 512.1(c).) The penalties associated with noncompliance is one (1) hour of pay at the employee’s regular rate of pay for each workday that the employer does not provide the meal period. (Lab. Code § 512.1(c); IWC Wage Order

4. Section 12; IWC Wage Order 5, Section 12.)
Given the lack of clarity in the Labor Code concerning the scope of this new statutory obligation and the potentially significant liability associated with it, we recommend that employers that are or may be subject to it consult with legal counsel. 42 602.4 Lactation Break Time and Location
The City of Point Arena will provide a reasonable amount of break time to accommodate any employee desiring to express breast milk for the employee’s infant child each time the employee has a need to express milk. The break time shall, if possible, run concurrently with any break time already provided to the employee. If the employee takes lactation breaks at times other than their provided break times, then the lactation break shall be unpaid or the employee may choose to use accrued leave.

Those desiring to take a lactation break at times other than their provided break times must notify a supervisor prior to taking such a break. Breaks may be reasonably delayed if they would seriously disrupt operations. Once a lactation break has been approved, the break should not be interrupted except for emergency or exigent circumstances.

The City of Point Arena will provide a room or other appropriate location in close proximity to the employee’s worksite that is not in a bathroom to express milk in private. The room or location will meet the following requirements:
(a) Be shielded from view and free from intrusion while being used to express milk; (b) Be safe, clean, and free of hazardous materials;
(c) Contain a surface on which to place a breast pump and personal items; (d) Contain a place to sit; and
(e) Have access to electricity needed to operate an electric battery-powered breast pump.

An employee occupying such private area shall either secure the door or otherwise make it clear to others through signage that the area is occupied and should not be disturbed. All other employees should avoid interrupting an employee during an authorized break under this section, except to announce an emergency or other urgent circumstance.

The City of Point Arena will provide access to a sink with running water and a refrigerator, or other cooling device, suitable for storing milk, in close proximity to the employee’s work area. 602.4.1 Lactation Accommodation
An employee may make a request for lactation accommodation, either orally or in writing, to the City Manager.

Following receipt of a request for lactation accommodation, the City of Point Arena will provide a timely written response to the employee in which the City of Point Arena will indicate if it is unable to provide the requested break time or a requested location for the purposes of expressing breast milk.
43 An employee who does not believe that the City of Point Arena is providing an appropriate lactation accommodation should immediately inform the City Manager.

An employee who does not believe that the City of Point Arena is providing an appropriate lactation accommodation as required by state law has the right to file a complaint with the California Division of Labor Standards Enforcement/Labor Commissioner.

Commentary:

Lactation Accommodation: State law requires every employer, and federal laws require public agencies of 50 or more to provide lactation accommodation to overtime-eligible employees. (29 U.S.C. § 207(r); Lab. Code §§ 1030, et seq.) Public agencies should also note that California’s anti-discrimination in employment law defines discrimination on the basis of sex to include discrimination on the basis of breast feeding. (Gov. Code § 12926(r)(1)(C).) As a result, overtime-eligible employees should also be allowed to use work time for expressing breast milk.

Private Room for Lactation Purposes: SB 142 (enacted 2019; effective January 1, 2020) amended Labor Code section 1031 to provide additional requirements regarding the location for a woman to pump or express breast milk for an infant child. As a result, agencies must now provide a private room or location, other than a bathroom, in which a woman may pump or express breast milk. SB 142 further amended Labor Code section 1031 to require that the room or location designated for such purposes shall be in close proximity to the employee’s work area, shielded from view and free from intrusion while being used for expressing milk. SB 142 also added several new requirements concerning the lactation room or locations, including that it: (1) be safe, clean, and free of hazardous materials; (2) contain a surface on which to place a breast pump and personal items; (3) contain a place to sit; and (4) have access to electricity needed to operate an electric battery-powered breast pump.

Access to Sink and Refrigerator: SB 142 amended Labor Code section 1031 to provide additional requirements regarding the provision of access to a sink with running water and refrigerator to store expressed milk. Effective January 1, 2020, public agencies must provide both a sink with running water and a refrigerator or other cooling device in close proximity to the employee’s work area.

Temporary Location: If an employer cannot provide a permanent lactation location because of operational, financial, or space limitations, the temporary lactation location must provide for the following: (1) be private and free from intrusion while an employee expresses milk; and (2) must meet all other requirements of state law concerning lactation accommodation. (Lab. Code § 1031.)
Limited Exemptions: SB 142 modified a prior exemption, and now provides that an employer that employs fewer than 50 employees may be exempt from a requirement of Labor Code section 1031 if it can demonstrate that a requirement would impose an undue hardship when considering the size, financial resources, nature, or structure of the employer’s 44 business. If that employer can demonstrate that the requirement to provide the use of a room or other location, other than a bathroom, would impose such undue hardship the employer is still required to make reasonable efforts to provide an employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area to express breast milk in private.

Lactation Policy: SB 142 also added Labor Code section 1034 to require that public agencies develop and implement a policy regarding lactation accommodation. The policy must provide for the following: (1) a statement about an employee’s right to request lactation accommodation; (2) the process by which employees may request lactation accommodation; (3) an employer’s obligation to respond to an employee’s request for lactation accommodation; and (4) a statement about an employee’s right to file a complaint with the Labor Commissioner for violations of any right in Labor Code section 1030, et seq.

Labor Code section 1034 also requires that public agencies provide such policy in the employee handbook or set of policies that the employer makes available to employees. Labor Code section 1034 further requires that the employer will provide a lactation accommodation policy to new employees upon hiring and when an employee makes an inquiry about or requests parental leave.
602.4.2 Storage of Expressed Milk
Any employee storing expressed milk in any authorized refrigerated area within the City of Point Arena shall clearly label it as such. No expressed milk shall be stored at the City of Point Arena beyond the employee’s work day/shift.

Commentary:

Best Practice: Only the portion of the above policy regarding storage of expressed milk is not required by law, but is instead a best practice.
602.5 Advance Request for Permission to Deviate from Regular Work Hours An overtime-eligible employee is required to seek advance permission from their supervisor for any foreseeable absence or deviation from regular working, break, and meal times. 602.6 Notification of Unforeseen Late Arrival or Absence An overtime-eligible employee who is unexpectedly unable to report for work as scheduled must notify their immediate supervisor no later than the beginning of the employee’s scheduled work time and report the expected time of arrival or absence. If an immediate supervisor is not available, the employee must notify the City Manager.
45 602.7 Unauthorized Absence is Prohibited
Arriving late to work or leaving early in connection with scheduled work times, breaks, or meal periods is prohibited, absent authorization. An overtime-eligible employee who fails to timely notify the City Manager of any absences as required by this policy, or who is not present and ready to work during all scheduled work times will be deemed to have an unauthorized tardy or absence and will not receive compensation for the period of absence. 602.7.1 Unauthorized Absence is Prohibited in the Event of an “Emergency Condition” In the event of an “emergency condition,” the City of Point Arena designates all employees as Disaster Service Workers, and expects such employees to report to their workplace or worksite and not to leave such workplace or worksite.

As used in this policy, “emergency condition” means the existence of either of the following: (1) Conditions of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act; or (2) An order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act.

Commentary:

The Existence of an “Emergency Condition” May Permit Public Employees to Refuse to Report to Work or to Leave Work: SB 1044 (enacted in 2022; effective January 1, 2023) prohibits employers, in the event of an emergency condition, from taking or threatening adverse action against any certain categories of employees for refusing to report to, or leaving, a workplace or worksite within the area affected by the “emergency condition” because the employee has a reasonable belief that the workplace or worksite is unsafe. (Lab. Code § 1139(b)(1).)
SB 1044 provides that an “emergency condition” means the existence of either: (1) Conditions of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act; or (2) An order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act. (Lab. Code § 1139(a)(1)(i) and (ii).) An emergency condition does not mean a health pandemic. (Lab. Code § 1139(a)(1)(B).) SB 1044 exempts certain categories of employees from the right to refuse to report to work or to leave work, including, but not limited to, the following employees: (1) First responders; (2) Disaster Service Workers; (3) Employees required by law to render aid or remain on the premises in case of an emergency; (4) Transportation employees participating in directly in emergency evacuations during an active evacuation; (5) Employees whose primary duties include assisting members of the public evacuate in case of emergency; and (6) Employees of health care facilities who provide direct patient care or services supporting patient care operations, or who are otherwise required by 46 law to participate in emergency response or evacuation. (Lab. Code § 1139(b)(1)(A)- (M).)
Note that while SB1044 exempts Disaster Service Workers, and all public employees are considered Disaster Service Workers under Government Code section 3101, it is not clear that a court would conclude that public employees acting in the normal course of their job duties would not have the right to refuse to report to a workplace or to leave a workplace in the event of an “emergency condition.” Therefore, the policy expressly states that, in the event of an “emergency condition,” all public employees will be acting as Disaster Service Workers.

SB 1044 also prohibits employers from preventing any employee from accessing the employee’s mobile device or other communications device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to confirm their safety in the event of an “emergency condition.” (Lab. Code § 1139(b)(2).) 602.8 Excessive Tardiness/Absenteeism and Abuse of Leave Excessive tardiness occurs when an overtime-eligible employee who, without authorization, is late to work or late to return from breaks more than three times during any 30-day period.

Excessive absenteeism occurs when the number of unapproved absences for reasons that are not permitted by federal or state law, exceeds three (3) days in any three (3) month period. Excessive tardiness or absenteeism may be grounds for discipline, up to and including termination.

Abuse of leave is a claim of entitlement to leave when the employee does not meet the requirements for taking the leave, and may be grounds for discipline, up to and including termination. Should the City of Point Arena suspect that there is an abuse of leave by an employee, the City of Point Arena may require that the employee submit a physician’s certificate to support the absence.

Commentary:

Excessive Absenteeism/Tardiness: The policy above provides one definition of what constitutes “excessive.” Note that a leave that is permitted by federal or state law is “protected” and cannot be counted toward any absence control policy. All of the leaves described in these policies are protected, with the exception of the following: (1) any sick leave that the employer provides beyond the protected leave under the Healthy Workplace Healthy Family Act of 2014 (i.e., beyond three (3) days/24 hour limit per year; and one-half of annual accrued sick leave for diagnosis, care or treatment of, or preventative care for, an employee or an employee’s family member); (2) administrative leave; (3) vacation leave; and (4) holiday leave.
47 604 Work Week, Overtime and Compensatory Time Off
604.1 Work Week
The workweek begins at 12:00 a.m. on Monday and ends at 11:59 p.m. on Sunday, except for employees on a 9/80 work schedule.

Commentary:

Designation of Workweek or Work Period: The FLSA requires that the employer designate a workweek or work period starting day and time for every employee – both overtime-exempt and overtime-eligible. (29 C.F.R. § 516.2(5) and 516.3.) The workweek or work period designation can be stated in these Policies, or as superseded by a CBA/MOU or a notation in the payroll records. (29 C.F.R. § 516.2(5) and 516.3.)
604.1 Work Week for 9/80 Work Schedule
Employees working a 9/80 work schedule will have a regular day off every other week as determined by the City of Point Arena. For employees working a 9/80 work schedule, each employee’s designated work week shall begin exactly four hours after the start of their eight (8) hour shift on the day of the week that corresponds to the employee’s alternating regular day off.

Commentary:

Alternative Schedules: If your agency allows employees to use a 9/80 work schedule, you must require employees to strictly adhere to that schedule to avoid incurring unexpected overtime for overtime-eligible employees. The FLSA requires public agencies to establish a seven (7) day workweek with a consistent starting day and time, which cannot be changed to avoid overtime. FLSA overtime accrues for non-safety employees after 40 hours of work in the designated workweek. (29 U.S.C. § 207(a).) In order to limit each workweek of a two-week 9/80 schedule to 40 hours, your agency must undertake the following: (1) prohibit employees from working on, or changing their regular day off; and (2) designate the work week to begin exactly four hours after the start of the eight (8) hour work day. 604.2 Overtime
Overtime is all hours an overtime-eligible employee actually works over 40 hours in their designated work week. Only actual hours worked will be counted toward the 40-hour threshold for purposes of calculating FLSA overtime pay; paid leave will not be counted. Overtimeeligible employees who are directed to work overtime must do so. 48 Commentary:

Calculation of Overtime: This policy follows the FLSA to the extent that only hours worked, and not paid leave hours, such as vacation or sick time, count toward overtime or compensatory time off (“CTO”). (29 U.S.C. § 207(a).) Although this is the FLSA threshold for the calculation of overtime hours, some public agencies do apply non-working hours, such as sick leave, to count as hours worked for overtime purposes in a CBA/MOU or policy. 604.2.1 No Remote Access for Overtime-Eligible Employees Unless the City Manager specifies otherwise in writing, overtime-eligible employees may not have remote access to City of Point Arena equipment, resources, or email.

Commentary:

Authorization for Remote Access: The above policy allows the agency to avoid unmonitored “off the clock” work and excessive overtime. Employees who receive authorization to have remote access to agency equipment, resources, or email should be instructed, in writing, to record and regularly submit to the employer all time worked and to limit the amount of remote monitoring per the agency’s direction.
604.2.2 Prior Approval Required for Overtime
Overtime-eligible employees are not permitted to work overtime except as directed and authorized by the City Manager. Working overtime without prior authorization or approval is grounds for discipline. In emergency situations that necessitate working overtime, the employee must notify the City Manager as soon as possible, and in no event later than the end of that day upon which the emergency occurred. If the City Manager denies the request to work overtime, the employee must obey the directive and cease working. Failure to follow these overtime approval procedures may subject the employee to disciplinary action, up to and including termination, for violating the overtime approval procedures. 604.3 Accurate Time Reporting
All employees must accurately report all work time to the nearest five (5) minutes.

Commentary:

Rounding of Time: The FLSA regulations allow rounding of work time to the nearest 5-6 minutes as long as it does not detriment the employee over time. (29 C.F.R. § 785.48(b).) 604.4 No Volunteering of Work Time
49 All time spent for the benefit of the City of Point Arena must be reported as hours worked on time records so that the employee is paid for all work. Overtime-eligible employees may not “volunteer” work time to perform duties that are the same or similar as their stated or regular job duties. Employees have no authorization to work without compensation. No supervisor has authority to request overtime-eligible employees to volunteer work time.

Commentary:

Volunteered Time: Volunteered time or “off the clock” work is the subject of many FLSA collective action lawsuits that cost employers millions of dollars. Ensure that your agency is not one of those by forbidding employees from working off the clock and by forbidding supervisors from asking subordinates to perform off-the-clock work. 604.5 Compensatory Time Off
An overtime-eligible employee may opt to accrue compensatory time-off (“CTO”) in lieu of cash payment for overtime worked if their supervisor agrees prior to overtime work being performed. (a) Accrual Rate: CTO accrues at the rate of one and one-half (1.5) hours for each hour, or fraction thereof, worked after 40 hours of actual work within the employee’s designated work week. Time in paid leave status does not count toward CTO. CTO cannot be accumulated in excess of [80] hours at any given time.

Commentary:

Understanding or CBA/MOU to Allow CTO: The FLSA allows a public employer to substitute CTO for cash overtime if there is an agreement in a CBA/MOU, or in the absence of a CBA/MOU, if there is an understanding between the employer and employee before the performance of work. (29 U.S.C. § 207(o)(2)(A)(ii).) As a result, requiring employees to acknowledge receipt and understanding of these Policies may constitute the necessary understanding to use CTO in lieu of cash overtime in the absence of a CBA/MOU. (See Policy 102.4 – Employee Acceptance of Policies and Revisions to Policies.) CTO Accrual Limit: While the FLSA allows CTO to accumulate to up to 480 hours for safety, emergency response and seasonal employees, and 240 hours for other employees, this policy only allows CTO to accumulate up to 80 hours in order to contain the value of CTO.

Your agency is free to increase the 80-hour cap stated above up to the FLSA maximums. (29 U.S.C. § 207(o)(3)(A).)
(b) Employee Request to Use CTO: The City of Point Arena will grant an employee’s request to use accumulated CTO provided that: (1) the department can accommodate the use of CTO on the day requested without undue disruption to department operations; and (2) the employee makes the request in writing to the supervisor no later than five days prior to the date requested. If the employee does not provide five days’ notice, or if the department cannot accommodate the time off without undue disruption, the City of Point 50 Arena will provide the employee the opportunity to cash out the amount of CTO requested at the end of the current pay period.

Commentary:

Case Law regarding CTO: This policy relies on the Ninth Circuit Court of Appeals’ interpretation of the FLSA in Mortensen v. County of Sacramento (9th Cir. 2004) 368 F.3d 1082 (“Mortensen”). In Mortensen, the Court decided that an employer does not need to allow an employee to use accrued CTO on the specific day the employee requests, but can instead honor the request by providing alternative dates within a reasonable time period after the request to use compensatory time is made. Thus, once an employee requests the use of CTO on a particular date, the employer has a reasonable period on or after the date the employee requests to schedule the time off. Other circuit courts of appeal, interpret the FLSA CTO regulations at 29 C.F.R. § 553.25 to require the employer to give CTO on the date that the employee requests, unless the employer can prove that CTO use on the date requested would unduly disrupt agency operations. California public agencies may follow the Mortensen interpretation until the U.S. Supreme Court decides otherwise. (c) City of Point Arena Cash Out: The City of Point Arena reserves the right to cash out accumulated CTO at any time.

Commentary:

Case Law Regarding Cashing Out CTO: The U.S. Supreme Court has decided that the employer retains the right to cash out CTO at any time. (Christensen v. Harris County (2000) 529 US 576.) If your agency does not currently force employees to cash out CTO, changing that practice would require meeting and conferring with represented parties. (d) Value of CTO Cash Out: During employment, CTO is cashed out at the employee’s current FLSA regular rate of pay (including all FLSA-applicable salary differentials and special pays). Employees separating from City of Point Arena service shall be compensated for all accrued, unused compensatory hours at their current FLSA regular rate of pay, or their average FLSA regular rate for the prior three years, whichever is higher.

Commentary:

Calculation of Cashing Out Compensatory Time Off: Title 29 of the United States Code section 207, subdivision (o) and Title 29 of the Code of Federal Regulations section 553.27 provides guidance on the calculation of the value of compensatory time off cash outs. (29 U.S.C. 207 (o)(3)(B) and (4); 29 C.F.R. § 553.27.)
51 700 Performance Evaluation Policies
702 Performance Evaluations
702.1 Performance Evaluations
A non-probationary employee’s supervisor will prepare and sign a performance evaluation on an City of Point Arena form for each performance evaluation period. The City Manager will review and approve all performance evaluations of subordinates in their department. The City Council will complete all performance evaluations of City Manager or any other employees under their direct supervision. Additional performance evaluations may be prepared at any time the City Manager deems necessary.
702.2 Probationary Employee Performance Evaluations
On or about the completion of six (6) months of a probationary period, and again at any point prior to separation or the successful completion of the probationary period, the probationary employee’s supervisor will prepare and sign a performance evaluation. The purpose of the probationary performance evaluation is to chart the probationer’s progress toward meeting the standards of their position.
702.3 Performance Evaluation Meeting
The supervisor will meet with the employee to discuss the evaluation. The employee shall sign the evaluation to acknowledge its contents and that they have met with their supervisor to discuss the evaluation. The employee’s signature shall not mean that they endorse the contents of the evaluation.
702.4 No Appeal Right
An employee does not have the right to appeal or submit a grievance regarding any matter relating to the content of a performance evaluation. Instead, the employee may comment on the evaluation in a written statement which will then be placed with the evaluation in the employee’s personnel file. The written statement must be submitted within 10 days after the employee receives the evaluation.
52 Commentary:

Frequency of Evaluations: This policy calls for two (2) probationary performance evaluations: (1) an annual evaluation for non-probationary employees; and (2) more frequent evaluations whenever the department director, department head or personnel officer deems necessary (e.g., during a performance improvement plan). Although probationary evaluations are not required by law, they are a best practice because they can be helpful to prove job-related and non-discriminatory reasons for releasing a probationer.

Performance Evaluation Meeting: Although not required by law, the performance evaluation meeting is a best practice to communicate job-related expectations and areas for improvement.

No Appeal Right: There is no formal appeal from any matter relating to the content of a performance evaluation; instead, the employee is limited to providing a written statement to comment on the evaluation. The statement should be reviewed for any express or implied complaint of discrimination, harassment, or retaliation, acted upon if necessary, and must be kept with the evaluation in the personnel file. It is up the agency to determine whether employees will be allowed to submit a grievance over a performance evaluation, but many public agencies exclude disputes over performance evaluations from the grievance procedure.
53 800 Leaves of Absences
802 Vacation Leave and Holidays
802.1 Vacation Leave
Eligible full-time and part-time employees, with the exception of temporary or seasonal employees earn vacation leave while in paid status until they reach the applicable vacation accrual cap. Employees accrue vacation time according to their full or part-time status and the number of consecutive years the employee has worked for the City of Point Arena as follows:
(a) Full-Time Employee Accrual Rate:

Consecutive Full Time Years
of Service
Received Per Pay Period of
Paid Status
Received per Year of
Paid Status
Less than 5 years 3.08 80 hours
5 – 10 years 4.62 120 hours
10 or more years 6.15 160 hours
Commentary:

Example Accrual Rates: The accrual rates set forth above are exemplars and your agency will likely have different accrual rates for employees. (b) Part-Time Employee Accrue Pro-rated Vacation:

Part-time employees who are budgeted to work at least 20 hours per week earn vacation leave while in paid status in a pro-rated amount based upon the accrual applicable to full time employees. Once a part-time employee reaches the pro-rated accrual cap, they stop earning vacation.

Commentary:

No Law Requires Vacation Leave: California law does not require public agencies to provide employees with vacation leave. As a matter of policy, your agency may elect to provide vacation at all, and which employees are entitled to such leave. “Use It or Lose It” Vacation Policies in Personnel Policies Are Illegal: Unless your agency’s employees are covered by a CBA/MOU, once an employee accrues vacation, that vacation cannot be forfeited. (Lab. Code § 227.3.) Conversely, “use it or stop earning/accruing” vacation policies like the above policy are lawful. 802.2 Limitations on Vacation Leave Accrual
54 No employee may accrue more than the equivalent of two (2) times the employee’s annual vacation leave accrual rate, or for part-time employees, the equivalent of two (2) times the prorated accrual rate. When an employee reaches the equivalent of two (2) times the employee’s annual vacation leave accrual rate, he/she shall cease earning vacation leave until their leave balance falls below the equivalent of two (2) times the employee’s annual vacation leave accrual rate. Vacation leave will not accrue during leaves of absence without pay unless required by law.

Commentary:

Discretion to Establish Limit: Your agency possesses discretion to set a “stop earningaccrual limit” that meets its needs. This policy also prevents vacation from accruing during unpaid leave unless required by law, as is the case for some military leaves. (See Mil. & Vet.

Code §§ 395.05; 395(d).)
802.3 Scheduling of Vacation Leave
Vacation leave may not be used until it is earned. The employee and the City Manager will schedule the times when an employee may take vacation leave. The scheduling will be based on the employee’s preference and the City’s operational needs. An employee shall provide a minimum of one week’s written advance notice, unless waived by the City Manager, when requesting vacation time off. The City of Point Arena may, at its discretion, require an employee to use accrued vacation.

Commentary:

Vacation Scheduling: Your agency can address requirements for vacation scheduling in order to meet its needs. The policy above requires written advance notice so as to curb excessive absenteeism.
802.4 Unused Vacation Leave upon Separation
Any employee separating from the City of Point Arena who has accrued vacation leave shall be paid for all accrued vacation at their rate of pay at the time of separation.

Commentary:

Cashing Out of Vacation Compensation: California law requires a cash out of accrued vacation pay at separation at the employee’s “final rate,” unless the employee is covered by a MOU that provides otherwise. (Lab. Code § 227.3.)
802.5 Holidays
55 Full-time employees, except temporary or seasonal employees, receive the holidays listed below with pay.

If New Year’s Day, Independence Day, or December 25th fall on a Sunday, the Monday following shall be treated as the holiday. If any of those three (3) holidays falls on a Saturday, the preceding workday shall be treated as the holiday. An employee who works less than 40 hours per week will receive a pro rata or proportional amount of leave. • New Year’s Day
• Martin Luther King’s Birthday
• President’s Day
• Memorial Day
• Independence Day
• Labor Day
• Columbus Day
• Veterans Day
• Thanksgiving Day
• Day After Thanksgiving Day
• Christmas Eve
• Christmas Day
802.6 Effect of Holiday on Vacation Leave
If one or more holidays falls within a vacation leave that an eligible full time employee is taking, such holiday shall not be charged as vacation leave. Full time employees on a 9/80 work schedule, however, do not receive any holiday pay for a holiday that falls on the regular day off.

Commentary:

Holiday Pay for 9/80 Employees: This policy prevents employees on a 9/80 work schedule from being paid for a holiday that falls on the regular day off. Note that the law does not require such a prohibition.
802.7 Floating Holidays
Full time employees who are entitled to holidays receive one (1) floating holidays per calendar year that must be used during that year. Any time not used will be cashed out on the last pay period of the calendar year.

Commentary:
56 Provision of Floating Holidays is Discretionary: No law requires that your agency provide floating holidays to agency employees. As a matter of policy, your agency may elect to provide such floating holidays, but it is not legally obligated to do so. 802.8 Pay for Holidays
Employees entitled to paid holidays or floating holidays shall be paid for the number of hours the employee was scheduled to work had it not been a holiday or floating holiday. An overtimeeligible employee who is required to work on a holiday will receive holiday pay and pay for the actual time worked on the holiday.

Commentary:

Provision of Premium Pay for Holiday Work is Discretionary: No law requires that public agencies pay employees a premium rate to perform work on holidays, but many agencies elect to do so. As a matter of policy, agencies may elect to provide such floating holidays, but it is not legally obligated to do so.
804 Sick Leave
804.1 Purposes for Sick Leave
Sick leave is paid leave from work that an employee may use for the following purposes:
(a) Diagnosis, care, or treatment of an existing health condition of, or preventative care for the employee themselves or any of the following family members of the employee: a child of any age or dependency status; a parent; a parent-in-law; a spouse; a registered domestic partner; a grandparent; a grandchild; or a sibling; or
(b) Diagnosis, care, or treatment of an existing health condition of, or preventative care for a “designated person”; or
Commentary:

Addition of a “Designated Person” to Employee Sick Leave Rights: AB 1041 (enacted in 2022; effective January 1, 2023) expands the class of people for whom an employee may take sick leave in order to provide care. AB 1041 authorizes employees to designate a “designated person” for whom the employee can use sick leave to provide care. (Lab. Code § 245.5(c)(8).) Employers are authorized to limit employee designation of a “designated person” to one “designated person” per 12-month period for paid sick days. (Lab. Code § 245(c)(8).)
AB 1041 provides that a “designated person” means “a person identified at the time the employee requests sick leave.” (Lab. Code § 245.5(c)(8).) 57 AB 1041 allows employees to designate the “designated person” at the time that the employee requests paid sick leave. (Lab. Code § 245.5(c)(8).) (c) For an employee who is a victim of domestic violence, sexual assault, stalking, or other crime in order for the employee to engage in any of the following activities: (1) obtain or attempt to obtain a temporary restraining order or other court assistance to help ensure the health safety or welfare of the employee or their child; or (2) obtain medical attention or psychological counseling, services from a shelter, program or crisis center, or (3) participate in safety planning or other actions to increase safety.

Commentary:

California Has Two Different Sick Leave Laws: California has two (2) different sick leave laws: (1) Healthy Workplace Healthy Family Act of 2014; and (2) The Kin Care Law. While these laws are separate and distinct, they overlap in certain ways. a. California’s Healthy Workplace Healthy Family Act of 2014 (Lab. Code §§ 245-249) requires public agencies to provide paid sick leave. This law entitles any employee who has worked at least thirty (30) days in twelve (12) months with an employer in California to accrue sick leave. Due to the low bar for eligibility, employees who have never received employer-provided sick leave before – such as temporary employees, seasonal employees, or part time employees – are now entitled to earn sick leave at the rate of one hour of sick leave for every 30 hours worked (about 5.7 hours a month for full time work). In addition, the Healthy Workplace Healthy Family Act of 2014 expands the permissible purposes of sick leave. As stated above, employees can now use paid sick leave to attend to not only their own illness, but: (1) issues related to domestic violence; or (2) the illness of the family members listed in the Kin Care leave law, plus the following additional family members – siblings, parent in laws, grandchildren, and grandparents.
b. California’s 2001 Kin Care law (Lab. Code §§ 233-234) requires those public agencies who already provide paid sick leave to expand the permissible use of that sick leave, so that employees can use up to one-half of accrued and available annual sick leave entitlement to attend to the illness of the following family members: child, parent, spouse, or registered domestic partner. (Lab. Code § 233(a).) SB 579 (enacted in 2015; effective January 1, 2016) made two changes to the Kin Care law to match the Healthy Workplace Healthy Family Act of 2014. First, Kin Care leave can be used to attend to issues related to domestic violence. (Lab. Code § 233(b)(30)(A).) Second, the list of Kin Care family members was expanded to match the list in Healthy Workplace Healthy Family Act of 2014. (Lab. Code § 233(b)(2) (siblings, parent in laws, grandchildren, and grandparents)).

Compliance with Both of California’s Sick Leave Laws: The Healthy Workplace Healthy Family Act of 2014 provides that it is independent of any other rights employees have under 58 other laws. (Lab. Code § 245.) As a result, the Kin Care law will now apply to all employees who are entitled to sick leave under the Healthy Workplace Healthy Family Act of 2014. This policy is drafted to comply with both laws.

The concept for this policy is to provide those who were not entitled to paid sick leave before the 2014 law – generally seasonal, temporary, or extra help employees - to receive only the sick leave required by the 2014 law. Those who were receiving sick leave before the 2014 law, conversely, continue to receive the generally higher sick leave accruals that they have been receiving, but they now enjoy the expanded uses for sick leave under the 2014 law.

Because this approach limits changes to those the law requires, the employer can generally narrow the scope of any necessary collective bargaining to the impacts of the changes imposed by the 2014 law.
804.2 Terms of Sick Leave
(a) Accrual & Carryover for Different Categories of Employees:
1) Full time employees who are not seasonal/temporary accrue eight (8) hours of sick leave for each calendar month of paid status. Accrued sick leave carries over from year to year. No accrual limit applies.
2) A part-time/seasonal/temporary employee who works 30 or more days within a year from the commencement of employment with the City of Point Arena accrues one hour of paid sick leave for every 30 hours worked. Accrued and unused sick leave carries over to the following year of employment but a parttime/seasonal/temporary employee stops earning sick leave once they have accrued 80 hours or 10 work days/shifts of such leave, whichever is greater.

Commentary:

Annual Use and Accrual Caps: SB 616 (enacted in 2023; effective January 1, 2024) increases the accrual amount and accrual cap under The Healthy Workplace Healthy Family Act of 2014. (Lab. Code § 246((b)(3), (j)
SB 616, allows the employer to limit the use of sick leave to “40 hours or five (5) days in each year of employment”. (Lab. Code § 246(d).) In a 2015 opinion letter that applied specifically to the initial version of The Healthy Workplace Healthy Family Act of 2014, the California Department of Industrial Relations (“DIR”) stated that this law provides a minimum standard for all employees – including those who work fewer than 8 hours in a day and those who work more. As a result, the opinion letter advises to provide “24 hours or three days of paid sick leave, whichever is more for an employee.” (DLSE Opinion Letter, https://www.dir.ca.gov/dlse/opinions/2015.08.07.pdf, uploaded August 7, 2015.) While the opinion letter concerned a prior version of the law and has not been updated to reflect the increased accrual amounts under the amended law, DIR guidance on the amended law states that employers should provide employees 40 hours or five (5) days of paid sick leave, 59 whichever results in more leave for the employee. (DIR FAQs, https://www.dir.ca.gov/dlse/paid_sick_leave.htm, last updated December 21, 2023.) SB 616 allows the employer to limit the accrual of sick leave to “80 hours or 10 days”. (Lab.

Code § 246(j).) As provided above regarding sick leave use, this policy sets the sick leave accrual cap at “80 hours or 10 days, whichever is greater.” Employers should provide employees paid sick leave according to the 2015 opinion letter in order to avoid incurring penalties that may be imposed for violation of this law. (Lab. Code § 248.5.) Credit Entire Accrual at Once, or Earn over the Year and Carry Over: SB 616 amended The Healthy Workplace Healthy Family Act of 2014 to require that the employer undertake either of the following: (1) provide the entire 40 hours or five (5) days per year accrual at the beginning of each calendar year, year of employment or 12-month period; or (2) allow the accrued and unused sick leave to carry over to the year following the year it was earned, subject to the accrual limits discussed above. (Lab. Code § 246(d).) Most public agencies will provide full-time employees sick leave each month rather than crediting it all at the beginning of the year. As a result, this policy provides for a carry-over of leave from one year to the following year. However, if your agency credits the entire, annual sick leave amount at once for some or all employees, modify this policy to eliminate the accrual and carry-over portions of this policy. (Lab. Code § 246(d).) (b) Sick Leave Use
An employee may use accrued sick leave, in a minimum increment of two hours, beginning on the 90th day after the first day of employment with the City of Point Arena, subject to the limits and request provisions in this policy.

Commentary:
90-Day Waiting Time: This 90-day waiting time is part of the Healthy Workplace Healthy Family Act of 2014 and is measured in calendar days. (Lab. Code § 246(c).) The waiting period will not affect continuing employees who have always had sick leave under your agency’s policies.

Minimum Increment: Public agencies may set a minimum increment for paid sick leave use that is less than the two hours listed in this policy. This policy uses the largest minimum increment – two hours – that the law allows (Lab. Code § 246(k)) as a means to prevent some types of sick leave abuse. Because the Healthy Workplace Healthy Family Act of 2014 generally does not allow an employer to request verification of the need for leave, the larger the minimum increment that the employer uses, the less likely an employee is to use sick leave in very small increments or as means to cover tardiness to work or a late return to work from a break.

Rate of Pay for Sick Leave: The Healthy Workplace Healthy Family Act of 2014 allows public agencies to calculate paid sick leave for FLSA overtime-eligible employees in either of 60 the following ways: (1) dividing the employee’s total wages, excluding overtime pay, by the total number of hours worked in the workweek in which the employee uses the sick time (Lab.

Code § 246(l)(1)); or (2) dividing the employee’s total wages, excluding overtime pay, by the total number of hours worked in the prior 90 days of employment. (Lab. Code § 246(l)(2).) Agencies can calculate the value of paid sick leave for FLSA-exempt employees in the same manner as the employer calculates wages for other paid leaves. (Lab. Code § 246(l)(3).) Protected Sick Leave:

An employee's use of paid sick leave provided pursuant to the Labor Code is protected leave.

Commentary:

Sick Leave Requirements: Labor Code section 233 provides general guidance concerning sick leave requirements.

Protected Paid Sick Leave: Both the Healthy Workplace Healthy Family Act of 2014 and Kin Care Leave law protect the use of sick leave. (See Lab. Code §§ 246.5(c)(1); 246(d); 233(c)); 246.5.) This means that your agency cannot count the sick leave provided under these laws toward any excessive absence disciplinary policy.

Written Notice: The Healthy Workplace Healthy Family Act of 2014 requires the employer to provide each employee with written notice of the amount of paid sick leave available with the paycheck on each designated pay date. (Lab. Code § 246(i).) While public agencies are exempt from the requirement to provide the itemized wage statement referenced by Labor Code section 226 (See Lab. Code § 226(i)), they are still required to provide a written notice that states the employee’s leave balance each payday. (Lab. Code § 246(i).) Failure to provide this written notice subjects the employer to stiff penalties, including liquidated damages to affected employees. (Lab. Code § 248.5.)
(c) Sick Leave Request: To request to use sick leave if the need for leave is foreseeable, an employee must give the immediate supervisor reasonable advance written or oral notice.

If the need for sick leave is not foreseeable, the employee shall provide written or oral notice of the need for the leave as soon as practicable. If the employee is required to be absent on sick leave for more than one day, the employee must keep the immediate supervisor informed each day as to the date the employee expects to return to work and the purpose of the leave. Failure to request sick leave as required by this policy without good reason, may result in the employee being treated as absent without leave. 61 Commentary:

Supervisor Has No Veto Power: The Healthy Workplace Healthy Family Act of 2014 requires only that the employee give advance notice if the sick leave is foreseeable; otherwise, the employee may provide notice as soon as is practicable. (Lab. Code § 246(m).) The Healthy Workplace Healthy Family Act of 2014 allows the employee to provide either a verbal or written request for leave. (Lab. Code § 246.5(a).) Moreover, the Healthy Workplace Healthy Family Act of 2014 prohibits public agencies from denying requests for sick leave (Lab. Code § 246.5(c)(1)); and allows an employee to decide how much leave they need to use. (Lab. Code § 246(k).) Moreover, the Healthy Workplace Healthy Family Act of 2014 establishes a rebuttable presumption of “unlawful retaliation” if the employer denies an employee the right to use accrued sick days. (Lab. Code § 246.5(c)(2).) This policy applies the Healthy Workplace Healthy Family Act of 2014 sick leave request standard to all requests for sick leave.
(d) Certification: The City of Point Arena may require that employees provide a physician’s certification to support any absence that involves the illness of the employee or family member if the City of Point Arena suspects that there is an abuse of sick leave by the employee. All employees, including seasonal or temporary, who use paid leave to address issues related to domestic violence, sexual assault, stalking, or other crimes and who cannot provide advance notice of their need for leave must provide certification of the need for leave within a reasonable time thereafter.

Commentary:

Domestic Violence, Sexual Assault and Stalking: Labor Code section 230 provides general guidance on issues related to domestic violence, sexual assault or stalking. (See Lab. Code § 230(d)(2).)
Verification of Sick Leave: The Healthy Workplace Healthy Family Act of 2014 is silent as to whether the employer can require a doctor’s note to verify sick leave. The following provisions of that law imply that the employer cannot require any verification: the requirement that public agencies provide leave on the employee’s request (Lab. Code § 246.5(a)); the provision that allows an employee to decide how much leave they need to use (Lab. Code § 246(k)); and the provision that prohibits agencies from denying the leave. (Lab.

Code § 246.5(c)(1).) However, if an employer has concerns about an employee abusing sick leave, the employer is not prohibited from requiring certification. Public agencies should maintain consistency in their enforcement of sick leave abuse. If the employer provides seasonal/temporary or extra help employees with more than 40 hours or five (5) days of paid sick leave, then it may also require certification in the same manner as required in this policy for employees who are not seasonal/temporary or extra help (i.e., require certification after the employee has used 40 hours or five (5) days of paid sick leave). (e) Sick Leave on Separation from Employment: Unused sick leave is not cashed out upon termination, resignation, retirement, or other separation from employment.

Commentary:
62 Cash Out of Sick Leave: This policy does not allow cash out of sick leave, because the Healthy Workplace Healthy Family Act of 2014 states that the employer is not required to do so (Lab. Code § 246(g)(1)) and because sick leave cash out can trigger additional taxation based on a constructive receipt theory. Should your agency provide employees with the option to cash out sick leave or vacation leave on an annual basis, we recommend consultation with legal counsel regarding the constructive receipt doctrine and the potential impacts of such doctrine to your agency’s cash out procedure. The Healthy Workplace Healthy Family Act of 2014 is silent regarding whether unused sick leave can be converted to service credit under the California Public Employees Retirement System (“CalPERS”) or the ‘37 Act, so this policy allows sick leave conversion in order to be competitive with other public agencies.
(f) Sick Leave Reinstatement: If an employee separates and is rehired within one (1) year from separation, accrued (or front-loaded) and unused sick leave, to a maximum of 10 days or 80 hours, whichever is greater, will be reinstated. An employee who worked at least 90 days in the initial employment with the City of Point Arena may immediately use reinstated sick leave. An employee who had not worked 90 days in the initial employment with the City of Point Arena must work the remaining amount of the 90 day-qualifying period to be able to use accrued (or front-loaded) sick leave.

Commentary:

Sick Leave Reinstatement: The Healthy Workplace Healthy Family Act of 2014 requires sick leave reinstatement. (Lab. Code § 246(g)(2).) The only exception to the sick leave reinstatement requirement, other than the time limitation on reinstatement, is if the employer already cashed out unused sick leave upon the employee’s separation, which is not required by the Healthy Workplace Healthy Family Act of 2014. (Lab. Code § 246(g)(1),(2).) Note that if your agency has a sick leave reinstatement right that is different than that required under the Healthy Workplace Healthy Family Act of 2014, modify this portion of the policy. 806 Family and Medical Care Leaves
806.1 Statement of Policy; Concurrent Running of Leave under the Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”) The City of Point Arena provides family and medical care leave for eligible employees as required by federal and state law. Employees who misuse or abuse family and medical care leave may be disciplined, up to and including termination. Employees who fraudulently obtain or use California Family Rights Act (“CFRA”) leave are not protected by the CFRA’s job restoration or maintenance of health benefits provisions.

This policy is supplemented by the Federal Family and Medical Leave Act (“FMLA”), and the CFRA. Unless otherwise stated in this policy, “Leave” means leave pursuant to the FMLA and 63 CFRA. Unless otherwise provided by law, the City of Point Arena will run each employee’s FMLA and CFRA leaves concurrently.
806.2 Definitions
(a) “Child”
a. Under the FMLA, “child” means a child under the age of 18 years of age, or 18 years of age or older who is incapable of self-care because of a mental or physical disability. An employee’s child is one for whom the employee has actual day-today responsibility for care, and includes a biological, adopted, foster or step-child.

A child is “incapable of self-care” if he/she requires active assistance or supervision to provide daily self-care in three or more of the activities of daily living or instrumental activities of daily living, such as caring for grooming and hygiene, bathing, dressing and eating, cooking, cleaning shopping, taking public transportation, paying bills, maintaining a residence, or using telephones and directories.
b. Under the CFRA, “child” means a child, including a child who is 18 years of age or older who is capable of self-care. An employee’s child means a biological, adopted, foster, step-child, legal ward, a child of a domestic partner, or a person to whom the employee stands in loco parentis.
(b) “Covered active duty” means: (1) in the case of a member of a regular component of the Armed Forces, duty during deployment of the member with the Armed Forces to a foreign country; or (2) in the case of a member of the reserve component of the Armed Forces, duty during the deployment of members of the Armed Forces to a foreign country under a call or order to active duty under certain specified provisions. (c) “Covered Service Member” means: (1) a current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or (2) a veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces, including a member of the National Guard or Reserves, at any time during the period of five years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy. (d) “Designated Person” means any individual related by blood or whose association with the employee is the equivalent of a family relationship. The designated person may be identified by the employee at the time the employee requests the leave. An employer may limit an employee to one designated person per 12-month period for family care and medical leave.

Commentary:
64 Expansion of CFRA Coverage to Include a Designated Person: AB 1041 (enacted in 2022; effective January 1, 2023) expands CFRA to allow an employee leave in order to provide care for a “designated person” which means “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” (Gov. Code § 12945.2(b)(2).) The designated person may be identified by the employee at the time the employee requests the leave. (Gov. Code § 12945.2(b)(2).) Employers are authorized to limit employees to one “designated person” per 12-month period for family care and medical leave (Gov. Code § 12945.2(b)(2).).
(e) “Domestic Partner” is another adult with whom the employee has chosen to share their life in an intimate and committed relationship of mutual caring and with whom the employee has filed a Declaration of Domestic Partnership with the Secretary of State, and who meets the criteria specified in California Family Code section 297. A legal union formed in another state that is substantially equivalent to the California domestic partnership is also sufficient.
(f) “Family member” for FMLA leave means an employee’s child, parent, and spouse. “Family member” for CFRA leave means an employee’s child, parent, parent-in-law, spouse, domestic partner, grandchild, grandparent, and sibling. (g) “Grandchild” means a child of the employee’s child. (h) “Grandparent” means a parent of the employee’s parent. (i) “Health Care Provider” means any of the following:
1) A doctor of medicine or osteopathy who is authorized to practice medicine or surgery in the State of California;
2) An individual duly licensed as a physician, surgeon, or osteopathic physician or surgeon in another state or jurisdiction, including another country, which directly treats or supervises treatment of a serious health condition; 3) A podiatrist, dentist, clinical psychologist, optometrist, or chiropractor (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist) authorized to practice in California and performing within the scope of their practice as defined under California State law; 4) A nurse practitioner or nurse-midwife or a clinical social workers who is authorized to practice under California State law and who are performing within the scope of their practice as defined under California State law;
5) A Christian Science practitioner listed with the First Church of Christ, Scientist in Boston, Massachusetts; and
65 6) Any health care provider from whom an employer or group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.
(j) “Next of Kin of a Covered Service Member” means the nearest blood relative other than the covered service member’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the covered service member by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered service member has specifically designated in writing another blood relative as their nearest blood relative for purposes of military caregiver leave under the FMLA.
(k) “Outpatient Status” means, with respect to a covered service member, the status of a member of the Armed Forces assigned to either: (1) a military medical treatment facility as an outpatient; or (2) a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients. (l) “Parent” means the biological parent of an employee or an individual who stands or stood in loco parentis (in place of a parent) to an employee when the employee was a child.

This term does not include parents-in-law.
(m)“Parent-in-law” means the parent of a spouse or domestic partner of the employee. (n) “Serious Health Condition” means an illness, injury impairment, or physical or mental condition that involves:
1) Inpatient Care in a hospital, hospice, or residential medical care facility, including any period of incapacity (e.g., inability to work or perform other regular daily activities due to the serious health condition, treatment involved, or recovery therefrom). A person is considered “inpatient” when a health care facility admits them to the facility with the expectation that they will remain at least overnight, even if it later develops that such person can be discharged or transferred to another facility, and does not actually remain overnight; or
2) Continuing treatment by a health care provider: A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
a. A period of incapacity (i.e., inability to work, or perform other regular daily activities) due to serious health condition of more than three consecutive calendar days; and
b. Any subsequent treatment or period of incapacity relating to the same condition, that also involves:
66 i. Treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision by a health care provider, or by a provider of health care services (e.g., a physical therapist) under orders of, or on referral by a health care provider; or ii. Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider. This includes, for example, a course of prescription medication or therapy requiring special equipment to resolve or alleviate the health condition. If the medication is over the counter, and can be initiated without a visit to a health care provider, it does not constitute a regimen of continuing treatment.
3) Any period of incapacity due to pregnancy or for prenatal care. Note that pregnancy is a “serious health condition” only under the FMLA. Under California law, an employee disabled by pregnancy is entitled to pregnancy leave. (See Policy 808, Leave Because of Pregnancy, Childbirth, or Related Medical Condition.) 4) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
a. Requires periodic visits for treatment by a health care provider, or by a nurse or physician’s assistant under direct supervision of a health care provider; b. Continues over an extended period of time (including recurring episodes of a single underlying condition); and
c. May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.). Absences for such incapacity qualify for leave even if the absence lasts only one day.
5) A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by health care provider.
6) Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment.
(o) “Serious Injury or Illness” means: (1) in the case of a member of the Armed forces, including a member of the National Guard or reserves, means an injury or illness that a covered service member incurred in the line of duty on active duty in the Armed Forces 67 (or existed before the beginning of the member’s active duty and was aggravated by the service in the line of duty on active duty in the Armed Forces) and that may render the service member medically unfit to perform the duties of the member’s office, grade, rank, or rating; or (2) in the case of a veteran who was a member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness that was incurred by the member in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.
(p) “Sibling” means a person related to the employee by blood, adoption, or affinity through a common legal or biological parent.

Commentary:

Definitions: Government Code section 12945.2, subdivision (c) provides definitions for “child” and “parent”. (Gov. Code § 12945.2(c)(1) and (7).) California law was amended in 2014 to define “marriage” as “a personal relation arising out of a civil contract between two persons ...” (Fam. Code § 300.) Family Code section 299.2 provides a definition for “domestic partner”. The CFRA regulations were amended in 2015 to define “spouse” to expressly include same-sex partners in marriage, as well as domestic partners. (2 C.C.R. § 11087(r).) In addition, the definition of “spouse” in federal Family and Medical Leave Act (FMLA) regulations was amended effective March 27, 2015 to provide same-sex couples FMLA rights as spouses. Specifically, the U.S. Department of Labor (“DOL”) amended the definition of spouse to look to the law where the marriage was entered into or celebrated, as opposed to the law of the state where the employee resides. (29 C.F.R. § 825.102.) Expansion of CFRA Coverage to Include Parent-in-Law: AB 1033 (enacted in 2021; effective November 18, 2021) expands CFRA leave to include a “parent-in-law” as a covered family member for whom an employee may take CFRA leave in order to provide care. (Gov. Code § 12945.2(b)(11) and (12).

Expansion of CFRA Coverage to Include Grandparent, Grandchild and Sibling: SB 1383 (enacted in 2020; effective January 1, 2021) expands CFRA leave to care for a family member with a serious health condition to include more family members of the qualified employee. Covered family members now include grandparent, grandchild, and sibling – in addition to the existing parent, child, spouse, or registered domestic partner. In addition, SB 1383 eliminates the previous restrictions under CFRA, which indicated that an employee could not take leave to care for their adult child who is age 18 years or older with a serious health condition unless that child was incapable of self-care because of a physical or mental disability.
(q) “Single 12 Month Period” means a 12-month period which begins on the first day the eligible employee takes FMLA leave to take care of a covered service member and ends 12 months after that date.
68 (r) “Spouse” means one or two persons to a marriage, regardless of the sex of the persons, and for purposes of CFRA leave, includes a registered domestic partner as defined. (s) “12-Month Period” means a rolling 12-month period measured backward from the date leave is taken and continuous with each additional leave day taken.

Commentary:

Defining the 12-Month Period: Your agency can select from four (4) different options for defining the “12-Month Period” for purpose of calculating the 12-week family leave entitlement: (1) the rolling backwards method; (2) the rolling forward method; (3) the calendar year method; and (4) an alternative fixed date method. (29 C.F.R. § 825.200(d)(1).) The above policy uses the rolling backward method. (29 C.F.R. § 825.200(b)(4); 2 C.C.R. § 11090(b).) Under the rolling backward method, each time an employee takes FMLA leave, the remaining leave entitlement is any balance of the 12 weeks which has not been used during the previous 12-Month Period. (29 C.F.R. § 825.200(c).) The second option is the rolling forward option. Under that option, the 12-Month Period begins once FMLA leave is first used. For example, if an employee first uses FMLA leave on September 1, 2018, the employee has until August 31, 2019 to use 12 weeks of FMLA leave. (29 C.F.R. § 825.200(c).)
The remaining two (2) options for defining the 12-Month Period are as follows: (1) the calendar year (29 C.F.R. § 825.200(b)(1)); or (2) any fixed 12-month year, such as a fiscal year or the employee’s anniversary date. (29 C.F.R. § 825.200(b)(2).) Only the “rolling” options prevent leave from being stacked together to make a 24-week leave covering two 12- Month Periods.

Definitions: Title 29 of the California Code of Regulations sections 825.102 and 122 provide for many of the definitions in this policy.

Rights of Service Members: In 2013, the FMLA was amended to broaden the rights of members of the Armed Forces and to allow veterans to take leave. The FMLA regulations were amended in 2008 and 2013. In July 2015, new CFRA regulations followed some, but not all of the 2008 and 2013 FMLA regulations. The above definitions include all of these amendments.
806.3 Reasons for Leave
Leave is only permitted for the following reasons:
(a) The birth of a child or to care for a newborn of an employee; (b) The placement of a child with an employee in connection with the adoption or foster care of a child;
69 (c) Leave to care for a child, parent, or spouse who has a serious health condition; (d) Under the CFRA only, leave is permitted to care for a domestic partner, grandparent, grandchild, parent-in-law, sibling, or any Designated Person, who has a serious health condition. Leave for this purpose does not apply to FMLA leave and will not run concurrently with leave under the FMLA.
(e) Leave because of a serious health condition that makes the employee unable to perform any one or more essential functions of their position;
(f) Leave for a variety of “qualifying exigencies” arising out of the fact that an employee’s spouse, son, daughter, or parent is on active duty or call to active-duty status in the National Guard or Reserves in support of a contingency operation; (g) Under the CFRA only, leave for a variety of “qualifying exigencies” arising out of the fact that an employee’s domestic partner is on active duty or call to active-duty status in the National Guard or Reserves in support of a contingency operation. Leave for this purpose does not apply to FMLA leave and will not run concurrently with leave under the FMLA; or
(h) Leave to care for a spouse, son, daughter, parent, or “next of kin” who is a covered service member of the U.S. Armed Forces who has a serious injury or illness: incurred in the line of duty while on active military duty; or existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces. This leave can run up to 26 weeks of unpaid leave during a single 12- month period.

Commentary:

Reasons for Leave: Government Code section 12945 and Title 29 of the Code of Federal Regulations sections 825.113, 120, 121, 126 and 127 provide for the reasons for leave.

SB 1383 (enacted in 2020; effective January 1, 2021) expands CFRA leave to care for a family member with a serious health condition to include more family members of the qualified employee. Covered family members now include grandparent, grandchild, and sibling – in addition to the existing parent, child, spouse, or registered domestic partner.

These changes expand CFRA’s deviation from the FMLA to add grandparent, grandchild, and sibling, along with the existing inclusion of registered domestic partner in its definition of “family member” that is not a part of the FMLA’s definition of that term.

Notice Regarding Employees’ Rights as Victims of Domestic Violence, Sexual Assault, Stalking, or Other Crimes: Labor Code section 230.1 prohibits public agencies from discharging, or in any manner discriminating or retaliating against an employee who satisfies one of the following criteria: (1) is a victim of domestic violence, sexual assault, or stalking; (2) is taking time off from work to seek medical attention resulting from related 70 injuries, obtain counseling, participate in safety planning or obtain services from a domestic violence shelter, program or rape crisis center; or (3) is a victim of a crime that caused physical injury, or that caused mental injury and a threat of physical injury; or (4) has an immediate family member who is deceased as the direct result of a crime.

AB 2337 (enacted in 2016; effective July 1, 2017) amended Labor Code section 230.1 so as to now require public agencies to provide employees with written notice of their rights to leave under Labor Code sections 230 and 230.1 This notice must be provided to all new employees upon hire and to existing employees upon request. (Lab. Code § 230.1(h)(1).) The Labor Commissioner has developed a model notice to comply with these requirements.

Public agencies may choose to adopt the Labor Commissioner’s model notice as their own notice to employees. Alternatively, public agencies may develop their own notice so long as it is “substantially similar” to the Labor Commissioner’s notice. 806.4 Employees Eligible for Leave
An employee is eligible for leave if the employee satisfies the following conditions:
(a) The employee has been employed by the City of Point Arena for at least 12 months; (b) The employee has been employed by the City of Point Arena for at least 1,250 hours during the 12-month period immediately preceding the commencement of the leave; and Commentary:

Employee Eligibility: Government Code sections 12945 and 12495.6, Title 29 of the Code of Federal Regulations sections 825.109 through 111, and Title 2 of the California Code of Regulations section 11087, subdivisions (d) and (e) provide for employee eligibility for the leaves discussed in this policy. This criterion is not required and does not apply in order for an employee to be eligible for CFRA leave.

Different Eligibility Standard for CFRA leave: SB 1383 (enacted in 2020; effective January 1, 2021) eliminates the 50 or more employees in a 75-mile radius definition for an employee to qualify for CFRA leave. The impact on this for smaller public agencies with less than 50 employees, is that they now must provide CFRA leave to all of their qualified employees.

FLSA Standard: In determining if the 1,250 hours requirement is met, the law uses the FLSA standard, which is hours worked and not paid leave. (See 29 CFR § 825.102.) 806.5 Amount of Leave
Eligible employees are entitled to a total of 12 workweeks (or 26 workweeks to care for a covered service member) of leave during any 12-month period. If FMLA leave qualifies as both 71 military caregiver leave and care for a family member with a serious health condition, the leave will be designated as military caregiver leave first.

Commentary:

Leave Entitlement: Title 29 of the Code of Federal Regulations section 825.127 provides the amount of leave to which eligible employees are entitled. 806.6 Minimum Duration of Leave
(a) If leave is requested for the birth, adoption or foster care placement of a child of the employee, leave must be concluded within one year of the birth or placement of the child.

In addition, the basic minimum duration of such leave is two weeks. However, an employee is entitled to leave for one of these purposes (e.g., bonding with a newborn) for less than two weeks duration on any two occasions.
(b) If leave is requested to care for a child, parent, parent-in-law, spouse, domestic partner, grandparent, grandchild, sibling or the employee themselves with serious health condition, there is no minimum amount of leave that must be taken. However, compliance with the notice and medical certification provisions in this policy is required.

Commentary:

Notice and Medical Certifications: Title 2 of the California Code of Regulations section 11090, subdivisions (d) and (e), provide for the use of leave. Title 29 of the Code of Federal Regulations section 825.205 requires compliance with notice and medical certification provisions.
806.7 Parents Both Employed by the City of Point Arena
If both married parents of a child, adoptee, or foster child are employed by the City of Point Arena and are entitled to bonding leave:
(a) The aggregate number of workweeks of FMLA leave to which both may be entitled may be limited to 12 workweeks during any 12-month period; and (b) Each married parent is entitled to take 12 workweeks of CFRA leave during any 12- month period.

If both married parents of a covered service member are employed by the City of Point Arena and are entitled to leave to care for a covered service member, the aggregate number of workweeks of leave to which both may be entitled is limited to 26 work weeks during the 12- month period. This limitation does not apply to any other type of leave under this policy. 72 Commentary:

Leave for Pregnancy or Child Birth: Title 29 of the Code of Federal Regulations section 823.120, subdivision (a) provides for rules for leave for pregnancy or child birth, including if both parents are employed by the same covered employer. (See 29 C.F.R. § 825.120(a)(3), 29 C.F.R. § 825.127(f).) SB 1383 (enacted in 2020; effective January 1, 2021) eliminates the restriction in the CFRA that allows an employer who employs both parents to limit their total amount of CFRA leave for both individuals to a total of 12 weeks for bonding with a newborn child, adopted child or foster care placement. However, the FMLA continues to set a limit of a total of 12-weeks for bonding leave where both spouses are employed by the same employer.
806.8 Employee Benefits While On Leave
(a) Group Health Insurance during Unpaid Leave: Leave under this policy is unpaid. While on unpaid leave, employees will continue to be covered by the City of Point Arena’s group health insurance for up to 12 weeks each leave year to the same extent that coverage is provided while the employee is on the job. If the employee is disabled by pregnancy, coverage will continue up to four months each leave year. If an employee disabled by pregnancy also uses leave under the CFRA for baby-bonding, the City of Point Arena will maintain her coverage while she is disabled by pregnancy (up to four months or 17 1/3 weeks) and during her CFRA leave (up to 12 weeks).

Commentary:

Coverage on Leave: Government Code sections 12945, subdivision (a), and 12945.2 provides for group health plan coverage for employees on leave due to pregnancy, child birth or related medical conditions. (See Gov. Code §§ 12945(a)(2)(A); 12945.2(s).) SB 299 and AB 592 (enacted in 2011; effective 2011) ensure that an employee disabled by pregnancy is entitled to continue health insurance coverage in an employer-provided group health plan for the duration of California’s pregnancy leave of up to four months. (Gov.

Code § 12945(a)(2)(A).) Because pregnancy disability is not covered by CFRA (Gov. Code § 12945.2(s)), an employee will also be entitled to continue health insurance coverage during up to 12 weeks of bonding leave. (Gov. Code § 12945.2(f)(1).) (b) Benefit Plans Not Provided through the City’s Group Health Plan during Unpaid Leave Do Not Continue: The City of Point Arena does not pay for benefit plans that are not part of the group health plan for any employee on unpaid leave. As a result, employees will not continue to be covered under the City’s benefit plans that are not provided through the City’s group health plans while the employee is on unpaid leave.

Commentary:
73 Choice of Provisions: Your agency should choose between one of the two provisions above, depending upon whether your agency provides those on unpaid leave the opportunity to continue coverage in employer-provided benefit plans that are not part of your agency’s group health plan benefits. The CFRA entitles employees on unpaid leave to participate in these plans (e.g., life, short-term, or long-term disability or accident insurance, retirement and pension plans) to the same extent and under the same conditions that would apply to employees on any other unpaid leave other than family leave. (Gov. Code § 12945.2(f)(2); 2 C.C.R. § 11092(e).) Note that the employer need not contribute to a pension plan during the portion of unpaid family leave. (Gov. Code § 12945.2(f)(2); 2 C.C.R. § 11092(e).) (b) Payment of Premiums: Employees may make the appropriate contributions for continued coverage under the health benefits plans by payroll deductions (if the employee is using their paid leave) or direct payments (if the employee is not using their paid leave). The City of Point Arena will inform the employee whether the direct payments for premiums should be paid to the carrier or to the City of Point Arena, and the deadlines for paying premiums in order to prevent coverage from being dropped. Employee contribution rates are subject to any changes in rates that occur while employee is on leave. (c) Recovery of Premium if the Employee Fails to Return from Leave: If an employee fails to return to work after their leave entitlement has been exhausted or expires, the City of Point Arena shall have the right to recover its share of health plan premiums for the entire leave period, unless the employee does not return because of the continuation, recurrence, or onset of a serious health condition of the employee or their family member which would entitle the employee to leave, or because of circumstances beyond the employee’s control.

Commentary:

Recovery of Premium Payments: Government Code section 12495.2, subdivision (f), Title 29 of the Code of Federal Regulations section 825.213, and Title 2 of the California Code of Regulations section 11092, subdivision (c) provide for the recovery of premium payments in the event that the employee does not return from leave. (See 29 C.F.R. § 825.213; Gov. Code § 12945.2(f)(1); 2 C.C.R. § 11092(c)(5).)
806.9 Substitution of Paid Accrued Leaves
Although family and medical care leave is unpaid, an employee may elect and the City of Point Arena will require an employee to concurrently use all paid accrued leaves during family and medical care leave as described below.
806.9.1 Employee’s Right to Use Paid Accrued Leave Concurrently with Family Leave An employee may use any earned or accrued paid leave except sick leave for all or part of any unpaid family and medical care leave. An employee is entitled to use sick leave concurrently 74 with family and medical care leave for the employee’s own serious health condition or that of the employee’s parent, parent-in-law, spouse, domestic partner, child, grandparent, grandchild, or sibling.

Commentary:

Accrual and Usage of Leaves: Government Code section 12945.2, subdivision (d), and Labor Code sections 233 and 246.5 provide for the accrual and usage of leaves. 806.9.2 City of Point Arena’s Right to Require an Employee to Use Paid Leave When Using FMLA/CFRA Leave
Employees must use and exhaust their accrued leaves concurrently with family and medical care leave to the same extent that employees have the right to use their accrued leaves concurrently with family and medical care leave with two (2) exceptions as described below:
(a) Employees are not required to use paid leave during leave pursuant to a disability plan that pays a portion of the employee’s salary while on leave unless the employee agrees to use paid leave to cover the unpaid portion of the disability leave benefit; and (b) An employee must agree to use accrued sick leave to care for a child, parent, spouse or domestic partner, grandparent, grandchild, or sibling.

Commentary:

Terms of FMLA and CFRA Usage: Government Code section 12945.2, subdivision (e), Title 29 of the Code of Federal Regulations section 825.207, subdivision (d) and Title 2 of the California Code of Regulations section 11092, subdivision (b) provide for the terms of FMLA and CFRA usage, including when an employer may require usage of paid leave leaves. (See Gov. Code § 12945.2(e); 29 C.F.R. § 825.207(d); 2 C.C.R. § 11092(b).) 806.9.3 City of Point Arena’s Right to Require an Employee to Exhaust FMLA/CFRA Leave Concurrently With Other Leaves
If an employee takes a leave of absence for any purpose which also qualifies under the FMLA and CFRA, the City of Point Arena will designate that leave as running concurrently with the employee’s 12-week FMLA and/or CFRA leave entitlement.

Commentary:

Exception for Peace Officers and Firefighters: Labor Code section 4850, subdivision (e), provides the exception for peace officers and firefighters.

After the passage of SB 1383 (enacted in 2020; effective January 1, 2021), the CFRA deviates from the federal FMLA in several ways. This could potentially create entitlements 75 for employees under both laws for up to 24 weeks of protected leave in a 12-month period under certain circumstances. Because SB 1383 makes significant changes to CFRA, a number of these changes create a greater potential for an employee who is covered under both FMLA and CFRA to have their leaves not run concurrently, and therefore be entitled to a greater amount of protected leave.
806.9.4 City of Point Arena’s and Employee’s Rights if an Employee Requests Accrued Leave without Mentioning FMLA or CFRA
If an employee requests to utilize accrued vacation leave or other accrued paid time off without reference to a FMLA/CFRA qualifying purpose, the City of Point Arena may not ask the employee if the leave is for a FMLA/CFRA qualifying purpose. However, if the City of Point Arena denies the employee’s request and the employee provides information that the requested time off is for a FMLA/CFRA qualifying purpose, the City of Point Arena may require the employee to exhaust accrued leave as described above.

Commentary:

Requests for Leave: Title 2 of the California Code of Regulations section 11092, subdivision (b) provides for employee requests to use paid leave without mentioning CFRA. (See 2 C.C.R. § 11092(b)(4)(A).)
806.10 Medical Certification/ Recertification
Employees who request leave must provide a medical certification and/or recertification to support the need for the leave as described below:
(a) Employee’s Own Serious Health Condition: Employees who request leave for their own serious health condition must provide written certification from the health care provider that contains all of the following: the date, if known, on which the serious health condition commenced; the probable duration of the condition; and a statement that, due to the serious health condition, the employee is unable to work at all or is unable to perform any one or more of the essential functions of their position. Upon expiration of the time period the health care provider originally estimated that the employee needed for their own serious health condition, the employee must obtain recertification if additional leave is requested.
(b) Family Member Serious Health Condition: Employees who request leave to care for a child, parent, parent-in-law, domestic partner, spouse, grandparent, grandchild, or sibling who has serious health condition must provide written certification from the health care provider of the family member requiring care that contains all of the following: the date, if known, on which the serious health condition commenced; the probable duration of the condition; an estimate of the amount of time which the health care provider believes the employee needs to care for the child, parent, domestic partner, spouse, grandparent, grandchild, or sibling and a statement that the serious health condition warrants the 76 participation of the employee to provide care during a period of treatment or supervision of the child, parent, domestic partner, spouse, grandparent, grandchild, or sibling. The term “warrants the participation of the employee” includes, but is not limited to, providing psychological comfort, and arranging third party care for the covered family member, as well as directly providing, or participating in, the medical care. Upon expiration of the time period the health care provider originally estimated that the employee needed to care for a covered family member, the employer must obtain recertification if additional leave is requested.
(c) Service member Serious Injury or Illness: Employees who request FMLA leave to care for a covered service member who is a child, spouse, parent or “next of kin” of the employee, must provide written certification from a health care provider regarding the injured service member’s serious injury or illness. The City of Point Arena will verify the certification as permitted by the FMLA regulations.
(d) Qualifying Exigency: The first time an employee requests leave because of a qualifying exigency, an employee may require the employee to provide a copy of the military member’s active duty orders or other documentation issued by the military which indicates that the military member is on covered active duty or call to active duty status in a foreign country, and the dates of the military member’s active duty service. A copy of the new active duty orders or similar documentation shall be provided to the City of Point Arena if the need for leave because of a qualifying exigency arises out of a different active duty or call to active duty status of the same or a different military member. The City of Point Arena will verify the certification as permitted by the FMLA and CFRA regulations.

Commentary:

FMLA and CFRA Medical Certifications: Government Code section 12945.2, subdivision (j) and Title 2 of the California Code of Regulations sections 11091, subdivision (b) and 11087, subdivision (a), and Title 29 of the Code of Federal Regulations sections 825.308-310 provide guidance to agencies concerning requests for medical certifications under CFRA and FMLA. (See Gov. Code § 12495.2(j)(2); 2 C.C.R. § 11091(b)(1),(2); 2 C.C.R. § 11087(a)(1), (2); and 29 C.F.R. §§ 825.308-310.)
Request for Certification: Public agencies should always request medical certification of the serious medical condition, as well as verification for the service member leaves as provided above. The certification and verification rules are one of the few ways that agencies can control and/or prevent abuse of leave. Note that the 2015 amendments to the CFRA regulations do not allow agencies to request recertification of a serious health condition every six months like the FMLA regulations do. (2 C.C.R. § 11091(b).) As a result, the policy follows the CFRA regulations.
77 806.11 Time to Provide a Medical Certification
When an employee has provided at least 30 days’ notice for a foreseeable leave, the employee must provide a medical certification before the leave begins. When this is not possible, the employee must provide the medical certification to the City of Point Arena within the time frame requested by the City of Point Arena (which must allow at least 15 calendar days after the employer’s request), unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts.

Commentary:

Timing of Requests for Medical Certifications: Title 2 of the California Code of Regulations sections 11091, subdivision (b) and Title 29 of the Code of Federal Regulations sections 825.305, subdivision (b) provide guidance to public agencies concerning the timing of requests for medical certifications. (See 2 C.C.R. § 11091(b)(3); 29 C.F.R. § 825.305(b).) 806.12 Consequences for Failure to Provide an Adequate or Timely Certification If an employee provides an incomplete medical certification, the employee will be given a reasonable opportunity to cure any such deficiency. However, if an employee fails to provide a medical certification within the time frame established in this policy, the City of Point Arena may delay the taking of FMLA/CFRA leave until required certification is provided, or deny FMLA/CFRA protections following the expiration of the time period to provide an adequate certification.

Commentary:

Failure to Provide Adequate Medical Certifications: Title 2 of the California Code of Regulations sections 11091, subdivision (b) and Title 29 of the Code of Federal Regulations sections 825.313, subdivisions (a) and (b) provide guidance to public agencies concerning the consequences for employees who fail to provide adequate or timely medical certifications. (See 2 C.C.R. § 11091(b)(3); 29 C.F.R. § 825.313(a), (b).) Document Communications about Deadlines: Both the FMLA and the CFRA regulations cited above require the employer to give a reasonable period of time for an employee to provide a certification for an unforeseeable need for leave. Public agencies should document their efforts to communicate the certification deadline, and the reasonableness of the deadline given the nature of the request for the leave. 78 806.13 Review of the Contents of Medical Certification for Employee’s Own Serious Health Condition
(a) Complete and Sufficient: The employee must provide a certification for their own serious health condition that is complete and sufficient to support the request for leave. A certification is incomplete if one or more of the applicable entries on the certification form have not been completed. A certification is insufficient if the information on the certification form is vague, ambiguous, or not responsive. If the certification is incomplete or insufficient, the City Manager will give the employee written notice of the deficiencies and seven days to cure, unless a longer period is necessary in light of the employee’s diligent, good faith efforts to address the deficiencies.

Commentary:

Complete and Sufficient Certification: Title 29 of the Code of Federal Regulations sections 825.305, subdivision (c) provides guidance to public agencies as to what constitutes complete and sufficient certification under FMLA. (See 29 C.F.R. § 825.305(c).) (b) Authentication and Clarification: After giving the employee an opportunity to cure the deficiencies in a medical certification for the employee’s own serious health condition, the City Manager may contact the health care provider who provided the certification to clarify and/or authenticate the certification. “Authentication” means providing the health care provider with a copy of the certification form and requesting verification that the information on the form was completed or authorized by the health care provider who signed the form. “Clarification” means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of the response.

The City Manager may not ask for additional information beyond that required on the certification form.

Commentary:

Limitations on Review of Medical Certifications: The FMLA regulations allow an agency to require that the medical certification be complete and sufficient to support the leave. If the agency’s efforts to get a complete and sufficient certification from the employee fail, the agency may seek clarification and authentication from the health care provider as provided in the above policy. There are two important limitations on the agency’s right to have a complete, authenticated and clear certification: (1) only a “human resources professional, leave official, or management official”, and not a supervisor, may contact the employee’s health care provider (29 C.F.R. § 825.307(a)); and (2) the agency cannot seek to authenticate or clarify a certification from for the serious health condition of a family member because of the CFRA regulation that requires the employer to accept a certification that contains the required information. (2 C.C.R. § 11091(b)(1).) 806.14 Second and Third Medical Opinions for Employee’s Own Serious Health Condition
79 If the City of Point Arena has a good faith, objective reason to doubt the validity of a certification for the employee’s serious health condition, the City of Point Arena may require a medical opinion of a second health care provider chosen and paid for by the City of Point Arena. If the second opinion is different from the first, the City of Point Arena may require the opinion of a third provider jointly approved by the City of Point Arena and the employee, but paid for by the City of Point Arena. The opinion of the third provider will be binding. The City of Point Arena must provide the employee with a copy of the second and third medical opinions, where applicable, without cost, upon the request of the employee.

Commentary:

Second and Third Medical Opinions: While the FMLA regulations allow the employer to get a second and third medical opinion for the family member’s serious health condition (29 C.F.R. § 825.307(b), (c)), the CFRA regulations state that an employer must accept the certification of a family member’s serious health condition if it contains all of the required information. (2 C.C.R. § 11091(b)(1).) The 2015 amendments to the CFRA regulations do not allow the employer to seek a second opinion unless the employer has a “good faith, objective reason” to doubt the validity of the original certification. (2 Cal. C.C.R. § 11091(b)(2)(A).) This policy allows for the second (2nd) and third (3rd) opinions for the employee only, and includes the good faith language that the CFRA regulations now require.

FMLA and CFRA regulations provide that public agencies must provide the employee with copies of the second and third medical opinions. (29 C.F.R. § 825.307(d); 2 C.C.R. § 11091(b)(2)(D).)
806.15 Intermittent Leave or Leave on a Reduced Leave Schedule If an employee requests leave intermittently (a few days or hours at a time) or on a reduced leave schedule for their own serious health condition, or to care for an immediate family member with serious health condition, the employee must provide medical certification that such leave is medically necessary. “Medically necessary” means there must be a medical need for the leave and that the leave can best be accomplished through an intermittent or reduced leave schedule.

The City of Point Arena may require an employee who certifies the need for a reduced schedule or intermittent leave to temporarily transfer to an alternate position of equivalent pay and benefits that better accommodates the leave schedule.

Commentary:

Intermittent Leave and Reduced Leave Schedules: FMLA and CFRA regulations provide public agencies guidance on intermittent leave and reduced leave schedules. (29 C.F.R. §§ 825.202(b); 825.204; 2 C.C.R. § 11091(e).)
No Intermittent or Reduced Schedule Leave without a Current Medical Certification:

Intermittent and reduced schedule leave are the most disruptive forms of family and medical leave. These forms of leave are also easily abused. As a result, intermittent or reduced schedule leave should never be given without a medical certification that states that the leave is medically 80 necessary. Nor should the agency agree to allow healthy baby/child bonding leave to be taken on a reduced schedule basis, or to allow the employee greater flexibility than allowed in the CFRA’s baby bonding minimum duration requirements. (See 2 C.C.R. § 11090(d) providing that the basic minimum duration of the leave shall be two (2) weeks. However, an employer shall grant a request for a CFRA leave of less than two (2) weeks’ duration on any two (2) occasions.]) 806.16 Employee Notice of Leave
Although the City of Point Arena recognizes that emergencies arise which may require employees to request immediate leave, employees are required to give as much verbal or written notice as possible of their need for leave. If leave is foreseeable, at least 30 days’ notice is required.

In addition, if an employee knows that he/she will need leave in the future, but does not know the exact day(s) (e.g., for the birth of a child or to take care of a newborn), the employee shall inform their supervisor as soon as possible that such leave will be needed. For foreseeable leave due to a qualifying exigency, an employee must provide verbal or written notice of the need for leave as soon as practicable, regardless of how far in advance such leave is foreseeable.

Commentary:

Notice of Leave: FMLA and CFRA regulations provide public agencies guidance on notice of leave requirements. (29 C.F.R. §§ 825.302(a); 825.304(a); 2 C.C.R. § 11091(a)(2), (3).) Remedial Measures: If the employee fails to provide timely notice of a foreseeable leave, the employer’s remedy is to delay the start of the leave. (29 C.F.R. § 825.304; 2 C.C.R. § 11091(a)(4).) An employer who uses this remedy prolongs the onset of FMLA/CFRA leave.

Because it is generally in the employer’s interest to expedite the completion of the leave, this remedy may not be helpful for foreseeable leaves. Note that the CFRA regulations prohibit an employer from denying an unforeseeable or emergency-need CFRA leave on the basis that the employee did not provide advance notice of the need for the leave. (2 C.C.R. § 11091(a)(4).)
806.17 Reinstatement upon Return from Leave
(a) Reinstatement to Same or Equivalent Position: Upon expiration of leave, an employee is entitled to be reinstated to the position of employment held when the leave commenced, or to an equivalent position with equivalent benefits and pay. Employees have no greater rights to reinstatement, benefits, and other conditions of employment than if the employee had been continuously employed during the FMLA/CFRA period. (b) Date of Reinstatement: If a definite date of reinstatement has been agreed upon at the beginning of the leave, the employee will be reinstated on the date agreed upon. If the reinstatement date differs from the original agreement of the employee and the City of Point Arena, the employee will be reinstated within two business days, where feasible, after the employee notifies the employer of their readiness to return. 81 (c) Employee’s Obligation to Periodically Report on Their Condition: Employees may be required to periodically report on their status and intent to return to work. This will avoid any delays to reinstatement when the employee is ready to return. (d) Fitness for Duty Certification: As a condition of reinstatement of an employee whose leave was due to the employee’s own serious health condition, which made the employee unable to perform their job, the employee must obtain and present a fitness-for-duty certification from the health care provider stating that the employee is able to resume work. Failure to provide such certification will result in denial of reinstatement. (e) Reinstatement of “Key Employees”: Under the FMLA only, the City of Point Arena may deny reinstatement to a “key” employee (i.e., an employee who is among the highest paid 10 percent of all employed by the City of Point Arena within 75 miles of the worksite) if such denial is necessary to prevent substantial and grievous economic injury to the operations of the City of Point Arena, and the employee is notified of the City of Point Arena’s intent to deny reinstatement on such basis at the time the employer determines that such injury would occur. Under the CFRA, the City of Point Arena may not deny reinstatement to a “key” employee during or upon the expiration of CFRA leave.

Commentary:

Reinstatement to Same or Equivalent Position: FMLA and CFRA regulations provides for reinstatement rights following leave. (2 C.C.R. §§ 11087(f) and (g); 11089(a); 29 C.F.R. § 825.214-215; 825.216.)
Date of Reinstatement: CFRA regulations provide for the date of reinstatement. (2 C.C.R. § 11089(c)(1), (2).)
Employee’s Obligation to Periodically Report on Their Condition: FMLA regulations provides for reporting requirements for employees. (29 C.F.R. § 825.311.) Fitness for Duty Certification Must Be Uniformly Required: Your agency may only require a fitness for duty certification as a condition of reinstatement if your agency uniformly requires fitness-for-duty certifications from employees returning from work after illness, injury or disability. (Gov. Code § 12945.2(k)(4); 2 C.C.R. § 11091(b)(2)(E); 29 C.F.R. § 825.312(a).) In addition, in order to require a fitness for duty certification, the employer must have notified the employee of this requirement in the family leave designation notice and provide the employee a list of the employee’s essential job functions. (29 C.F.R. § 825.300(d)(3).)
Reinstatement of Key Employees: Government Code and FMLA regulations provides for reinstatement of key employees. (Gov. Code § 12945.2(r)(1); 29 C.F.R. § 825.217-219.) Effective January 1, 2021, SB 1383 eliminates the “key employee” exception to the right to reinstatement for CFRA leave. (Gov. Code § 12945.2.)
82 Not Useful for Public Agencies: Note that it is nearly impossible for a public agency to deny reinstatement to a key employee because a public agency is not a profit-making entity and it is harder to prove substantial and grievous economic injury. The key employee defense to reinstatement is included here for that rare occasion when it may be useful. 806.18 Required Forms
Employees must complete the applicable forms to receive family and medical care leave. The forms may be found at Point Arena City Hall.

Commentary:

Do Not Ask for the Employee’s Medical Condition or Diagnosis: Public agencies should not ask employees to disclose their medical condition or diagnosis. (2 C.C.R. § 11087(a)(1), (2).)
Retain Records Distinguishing Protected Leaves from Unprotected Absences: Public agencies should retain records of employee requests for protected leaves and records of their unprotected absences in order to defend themselves against potential claims that the agency unlawfully denied a protected leave requested by an employee. (Wilkin v. Cmty. Hosp. of the Monterey Peninsula, 2021 WL 5371427 (Cal. Ct. App. Oct. 26, 2021)). 808 Leave Because of Pregnancy, Childbirth, Related Medical Condition, or Reproductive Loss
808.1 Amount of Leave
An employee who is disabled because of pregnancy, childbirth, or a related medical condition is entitled to an unpaid leave for up to the number of hours she would normally work within four calendar months (one-third of a year or 17 1/3 weeks). For a full-time employee who works 40 hours per week, “four months” means 693 hours of leave entitlement, based on 40 hour per week times 17 1/3 weeks. An employee who works less than 40 hours per week will receive a pro rata or proportional amount of leave.

Commentary:

Leave for Pregnancy, Child Birth and Related Medical Conditions: Government Code section 12945, subdivision (a), and Title 2 of the California Code of Regulations section 11042, subdivision (a), provide for leave for pregnancy, child birth and related medical conditions. (Gov. Code § 12945(a); 2 C.C.R. § 11042(a)(1), (2).)
Leave for Reproductive Loss: SB 848 (enacted in 2023; effective January 1, 2024) provides leave for “reproductive loss,” which means a failed adoption, failed surrogacy, miscarriage, 83 stillbirth, or an unsuccessful assisted reproduction. The terms and conditions concerning such leave is set forth at Section 808.6, below.

No Qualification Period for Pregnancy Disability Leave: Unlike family and medical care leave, there is no qualification period or minimum hours worked requirement for pregnancy disability leave (“PDL”); an employee of any status is entitled to take it immediately upon hire. (2 C.C.R. § 11037.) The right to PDL leave is in addition to family and medical leave under the CFRA. (2 C.C.R. § 11046(a).) Moreover, the right to PDL is separate and distinct from the right to take a leave of absence as a form of reasonable accommodation for a disability. (Gov. Code § 12940(m); 2 C.C.R. § 11047) (For more information on processing a request for accommodation or transfer, see Policy 206 – Reasonable Accommodation and Interactive Process for the Policies) However, an employer may run the employee’s 12 weeks of family leave under the federal FMLA concurrently with PDL leave. (2 C.C.R. § 11045(a).) 808.2 Notice & Certification Requirements
(a) Notice: Requests for pregnancy disability leave must be submitted in writing with reasonable advance notice of the medical need for the leave. All leaves must be confirmed in writing, have an agreed-upon specific date of return, and be submitted to the City Manager.
(b) Certification: The request for pregnancy disability leave must be supported by a written certification from the attending physician stating that: (1) the employee is disabled from working by pregnancy, childbirth or a related medical condition; (2) the date on which the employee became disabled by pregnancy, childbirth or a related medical condition; and (3) the estimated duration or end date of the leave.

Commentary:

Notice: The California Code of Regulations provide for notice requirements for pregnancy disability leave. (2 C.C.R. § 11042(a), (c)(1).)
Certification and Certification Form: California Code of Regulations provide for certification requirements pregnancy disability leave. (2 C.C.R. §11050(b)(7), (e).) Further, the California Code of Regulations contains a form entitled: “Certification of Health Care Provider for Pregnancy Disability leave, Transfer and/or Reasonable Accommodation” that can be used. (See 2 C.C.R. § 11050(e).)
808.3 Compensation during Leave
Pregnancy disability leaves are without pay. However, the employee must first use sick leave, if any. Once sick leave is depleted, the employee may elect to use vacation leave or any other accrued paid time off during the leave
Commentary:
84 Compensation during Leave: The California Code of Regulations provides that an employer is not required to pay an employee during pregnancy disability leave. (2 C.C.R. § 11044(b)(1), (2).)
808.4 Benefits during Leave
(a) Group Health Insurance: An employee on pregnancy disability leave may continue to receive any group health insurance coverage that was provided before her leave, beginning on the date the pregnancy disability leave begins and continuing for up to four months in a 12-month period, at the same level and under the same conditions that coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. The City of Point Arena may recover premiums it paid to maintain health coverage if an employee does not return to work following pregnancy disability leave, unless the reason for the failure to return is a circumstance beyond her control or the use of the separate right to 12 weeks of bonding leave under the FMLA.

Commentary:

Receipt of Benefits during Leave: Government Code section 12945, subdivision (a), and California Code of Regulations section 11044 provide for the receipt of benefits during pregnancy disability leave. (Gov. Code § 12945(a)(2)(A); 2 C.C.R. § 11044(c).) SB 299 and AB 592 (enacted in 2011; effective 2011) amended California’s PDL law to require the employer to maintain and pay for group health insurance for up to four months on the same terms as applied while the employee was working. (Gov. Code § 12945(a)(2)(A).)
(b) Sick and Vacation Leaves: Sick and vacation leaves do not accrue while an employee is on unpaid pregnancy disability leave.

Commentary:

Accrual of Leaves: California Code of Regulations section 11044 provides for the accrual of sick and vacation leaves on pregnancy disability leave. (See 2 C.C.R. § 11044(d)(1).) California’s PDL law requires the unpaid PDL leave to be treated as other types of unpaid leaves for vacation and sick leave accrual. If your agency allows sick or vacation leave to accrue during periods of unpaid leave, then your agency must accrue for PDL leave too.

You will need to select the policy language above that fits your agency’s practices. (c) Employee Status during Leave: The employee retains employee status during the leave.

The leave is not a break in service for purposes of longevity or seniority under any collective bargaining agreement or employee benefit plan. Benefits will be resumed upon 85 the employee’s reinstatement in the same manner and at the same levels as provided when the leave began, without any new qualification period, physical exam, or other qualifying provisions.

Commentary:

Retention of Status: The California Code of Regulations section 11044 provides for the retention of employee status on during pregnancy disability leave. (See 2 C.C.R. § 11044(e).) 808.5 Reinstatement
(a) Upon the expiration of pregnancy leave, the employee will be reinstated to her original or a comparable position, so long as it was not eliminated for a legitimate business reason during the leave.
(b) If the employee’s original position is no longer available, the employee will be assigned to a comparable, open position.
(c) If upon return from leave an employee is unable to perform the essential functions of her job because of a physical or mental disability, the City of Point Arena will initiate an interactive process with the employee in order to identify a potential reasonable accommodation in accordance with these Policies. (See Policy 206, Reasonable Accommodation and Interactive Process.)
Commentary:

Right of Reinstatement: An employee on pregnancy disability leave has no greater right to return than any other employee who had been continuously employed. The employer must reinstate the employee to her original position unless the employer can show, by the preponderance of the evidence, that the employee would not have been employed at the time reinstatement is requested because of legitimate business reasons unrelated to the leave. (2 C.C.R. § 11043(c).)
808.6 Leave for Reproductive Loss
The City of Point Arena provides employees who have been employed at least 30 calendar days with Reproductive Loss Leave, in the event of a “Reproductive Loss Event” “Reproductive Loss Event” means the day or, for a multiple-day event, the final day of a Failed Adoption, Failed Surrogacy, Miscarriage, Stillbirth, or an Unsuccessful Assisted Reproduction, as those terms are defined below:
• “Failed Adoption” means the dissolution or breach of an adoption agreement with the birth mother or legal guardian, or an adoption that is not finalized because it is contested 86 by another party. This event applies to a person who would have been a parent of the adoptee if the adoption had been completed.
• “Failed Surrogacy” means the dissolution or breach of a surrogacy agreement, or a failed embryo transfer to the surrogate. This event applies to a person who would have been a parent of a child born as a result of the surrogacy.
• “Miscarriage” means a miscarriage by a person, by the person’s current spouse or domestic partner, or by another individual if the person would have been a parent of a child born as a result of the pregnancy.
• “Stillbirth” means a stillbirth resulting from a person’s pregnancy, the pregnancy of a person’s current spouse or domestic partner, or another individual, if the person would have been a parent of a child born as a result of the pregnancy that ended in stillbirth. • “Unsuccessful Assisted Reproduction” means an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure. This event applies to a person, the person’s current spouse or domestic partner, or another individual, if the person would have been a parent of a child born as a result of the pregnancy.

Reproductive Loss Leave may be taken for up to five (5) days per Reproductive Loss Event.

Reproductive Loss Leave is not required to be taken consecutively, but such leave must be taken within three (3) months of the Reproductive Loss Event, with the exception that, if an employee is on California Family Rights Act (“CFRA”) leave, Pregnancy Disability Leave (“PDL”), or another leave protected by state or federal law at the time of or immediately following the Reproductive Loss Event, the employee may use Reproductive Loss Leave within three (3) months of the end date of the other protected leave.

If an employee experiences more than one Reproductive Loss Event within a 12-month period, the City of Point Arena will provide Reproductive Loss Leave up to a maximum of 20 days within a 12-month period.

Reproductive Loss Leave is unpaid, but employees may elect to use accrued paid leaves, such as sick leave, personal leave, or vacation in order to provide for their compensation while on Reproductive Loss Leave.

The City of Point Arena will maintain the confidentiality of any employee who requests to use or uses Reproductive Loss Leave, and the City of Point Arena will not disclose such information other than to internal personnel on a need to know basis, or as required by law.

Leave for Reproductive Loss: SB 848 (enacted in 2023; effective January 1, 2024) adds Government Code section 12945.6 to provide unpaid, but protected, leave to an employee who sustains a “reproductive loss,” as that term is defined in the statute. 87 Customize This Policy: Neither state nor federal law requires an employer to provide paid Reproductive Loss Leave. However, public agencies may provide it for humanitarian purposes. Your agency can determine how much, if any, paid Reproductive Loss Leave to provide.
810 Other Leaves
810.1 Management Leave
On January 1 of each year, employees who are exempt from FLSA overtime will receive 32 hours paid management leave. This management leave must be used during the calendar year in which it is received, or it will be lost. Newly hired or newly promoted employees who are exempt from FLSA overtime will receive a prorated amount of management leave for the year in which they are hired.

Commentary:

No Requirement to Provide Paid Management Leave: There is no requirement to provide FLSA-exempt employees paid management leave. However, it is a common practice to acknowledge FLSA-exempt employees for working on nights and weekends. Your agency has discretion to provide a lesser amount of leave, or none at all. At present, no law or regulation provides for the vesting of management leave. 810.2 Jury Duty Leave/Subpoenaed or Court-Ordered Witness Leave Any employee, including a temporary or seasonal employee, who is summoned to serve on a jury, or subpoenaed or ordered to be a witness, must notify their supervisor or City Manager as soon as possible. Any employee who is released from jury service prior to the end of their scheduled work hours must report to work unless otherwise authorized by their supervisor.

Commentary:

Protected Leave: Federal and state laws provide for and protect leaves of absence to appear as a witness, serve on a jury, or respond to a governmental order. (Gov. Code § 1230; Lab.

Code § 230; 28 U.S.C. § 1875(c).)
810.2.1 Overtime-Eligible Employees
All overtime-eligible employees will be paid for actual work hours missed because of time spent in jury service or court. The time spent on jury duty is not work time for purposes of calculating overtime compensation. The City of Point Arena will offset from pay the amount the employee receives from the Court for jury fees.
88 810.2.2 Overtime-Exempt Employees
All FLSA-exempt employees will continue to receive their normal salary while on jury duty or as serving as a witness only for any workweek in which they perform any work duties. The City of Point Arena will offset the amount from pay the employee receives from the Court for jury fees.

Commentary:

Jury or Court Leave is Required: Federal and state laws require an employer to grant any employee – including temporary or seasonal employees – a leave for jury service. (28 U.S.C. § 1875(c); Lab. Code § 230(a); Gov. Code § 1230.) State law also requires an employer to grant an employee who is a victim of a crime to grant leave to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding. (Lab. Code § 230(b).) Pay Depends on Employee Status: The FLSA treats overtime-eligible and overtime-exempt employees differently. FLSA overtime-eligible employees are not entitled to pay for time not worked, nor does non-work time count toward FLSA overtime pay. The salary of a FLSA exempt employee, however, cannot be reduced for time spent in jury service. (29 C.F.R. § 541.602(b)(3).) An FLSA-exempt employee, however, need not be paid for any workweek in which the employee performs no work. (29 C.F.R. § 541.602(a).) An agency that wants to treat all employees equally, will pay both exempt and overtime-eligible employees for jury service. 810.3 Other Court or Administrative Proceeding Appearances 810.3.1 Regarding Agency Duties
Any employee, including a seasonal/temporary employee, who is subpoenaed to appear in court in a matter regarding an event or transaction in the course of their City of Point Arena job duties, must give their supervisor as much advance notice as is possible. The City of Point Arena will determine whether the matter involves an event or transaction in the course of the employee’s City of Point Arena job duties. If so, this leave to appear in court will be without loss of compensation, and the time spent will be considered work time. The City of Point Arena will offset the amount from pay the employee receives for witness fees.

Commentary:

Time Off Without Pay: California law requires any employee, including seasonal or temporary employees, to be granted time off without pay to appear in court to comply with a subpoena or other court order to appear as a witness. (Lab. Code § 230(a).) The salary of a FLSA exempt employee, however, cannot be reduced for time spent “in attendance as a witness.” (29 C.F.R. § 541.602(b)(3).) A local agency that grants paid jury leave, however, must provide paid witness leave. In that case, the agency can offset the pay by the amount of 89 witness fees to an employee who is testifying as a non-litigant witness in court. (Gov. Code §§ 1230(a), 1230.1.) In order to treat FLSA overtime-eligible and FLSA-exempt employees similarly, the above policy provides paid leave for both. 810.3.2 Regarding Employee-Initiated Proceedings
Any employee, including a part-time/seasonal/temporary employee, who is subpoenaed to appear, or appears in court because of civil or administrative proceedings that they initiated, is not entitled to receive compensation for time spent related to those proceedings. An employee may request to receive time off without pay, or may use any accrued leave other than sick leave for time spent related to those proceedings. The time spent in these proceedings is not considered work time. Notwithstanding the above, an employee who is testifying or appearing as the designated representative in PERB conferences or hearings, or at a personnel or merit commission is entitled to paid release time.

Commentary:

Employee-Initiated Proceedings are Generally Not Work Time: FLSA exempt-employees are not entitled to pay to participate in civil or administrative proceedings they initiate. (Shockley v. City of Newport News (4th Cir. 1993) 997 F.2d 18, 24.) FLSA overtime-eligible employees are not entitled to pay for time not worked.

Paid Time When Employees are Acting as Union Representatives: Employees may receive paid release time when they are acting as union representatives at Public Employee Relations Board (“PERB”) proceedings of any kind or personnel or merit commission hearings. (Gov. Code § 3505.3(a)(2), (3).)
810.3.3 Regarding Crime Victim/Victim Family Member Court Attendance Leave Any employee, including a seasonal/temporary employee, who is a victim of a crime may take leave from work to attend judicial proceedings related to that crime, if the employee provides the City of Point Arena notice of the scheduled proceeding in advance. If advance notice is not feasible, the employee must provide the City of Point Arena, within a reasonable time after the leave is taken, documentation from the District Attorney, victim’s rights office, or court/governing agency that shows that the judicial proceeding occurred when the leave was used. An employee who is an immediate family member of such a crime victim, including: a registered domestic partner; the child of the registered domestic partner; spouse; child; stepchild; brother; stepbrother; sister; stepsister; mother; stepmother; father; or stepfather of the crime victim is also entitled to leave from work to attend judicial proceedings relating to that crime.

The leave is unpaid unless the employee elects to use accrued vacation, sick, or other paid leave, or compensatory time off.

Commentary:
90 Leave for Victims and Relatives of Victims: California law provides this leave to all employees who are either victims of specified felonies or immediate relatives of a crime victim. (Lab. Code § 230.2.)
810.3.4 Regarding Crime Victim/Family Member Victims’ Rights Proceedings Leave Any employee, including a seasonal/temporary employee, who is a victim of a crime listed in Labor Code section 230.5(a)(2)(A), may take leave from work to appear in court to be heard at any proceeding in which the right of the victim is at issue, if the employee provides the employer reasonable advance notice. If advance notice is not feasible, the employee must provide the City of Point Arena, within a reasonable time after the leave is taken, certification from a police report, a district attorney or court, or from a health care provider or victim advocate, that the employee was a victim of any of the crimes listed in Labor Code section 230.5(a)(2)(A). An employee who is a spouse, parent, child, sibling, or guardian of such a crime victim is also a victim who is entitled to this leave if the above notice or certification requirements are met. The leave is unpaid unless the employee elects to use accrued vacation or paid leave, or compensatory time off.

Commentary:

Victims and Relatives of Victims: California law provides this leave to all employees who are either victims of the crimes specified in Labor Code section 230.5(a)(2)(A), or who are the spouse, parent, child, sibling, or guardian of the victim. (Lab. Code § 230.5(f).) This leave law does not permit an employee to use sick leave to receive pay during this leave. (Lab. Code § 230.5(e).)
810.4 Leave for Victims of Domestic Violence, Sexual Assault, Stalking or Other Crimes to Obtain Restraining Orders or Injunctive Relief Any employee, including a seasonal/temporary/extra help employee, who is a victim of domestic violence, sexual assault, stalking, or other crime may take leave from work to obtain or attempt to obtain any relief, including, but not limited to: a temporary restraining order, restraining order, or other injunctive relief to help ensure the health, safety, or welfare of the employee or their child, if the employee provides advance notice of the need for leave. If advance notice is not feasible, the employee must provide any of the following certifications within a reasonable time after the leave: a police report indicating that the employee was a victim; a court order protecting the employee from the perpetrator; evidence from the district attorney or court that the employee has appeared in court; or documentation from a health care provider or counselor that the employee was undergoing treatment for physical or mental injuries or abuse. The leave is unpaid unless the employee elects to use Healthy Workplace Healthy Family Act of 2014 sick leave, accrued vacation or paid leave, or compensatory time off.

Commentary:
91 Victims of Domestic Violence, Sexual Assault, Stalking, or Other Crimes: California law provides all employees who are victims of domestic violence, sexual assault, stalking or other crimes, with leave to attempt to obtain restraining orders or injunctive relief from the courts. (Lab. Code § 230(c).) Although this leave law does not permit an employee to use sick leave to receive pay during this leave (Lab. Code § 230(i)), the later enacted Healthy Workplace Healthy Family Act of 2014 does allow an employee to use paid sick leave of up to three days/shifts, or 24 hours, whichever is greater, per year for this purpose. (Lab. Code § 246.5(a)(2).)
Notice to New Employees: AB 2337 (enacted in 2016; effective July 1, 2017) requires public agencies to provide written notice of these rights to new employees upon hire and to existing employees upon request. (Lab. Code § 230.1(h)(1).) The Labor Commissioner has developed a model notice to comply with these requirements. Agencies may choose to adopt the Labor Commissioner’s model notice as their own notice to employees. Alternatively, agencies may develop their own notice. If an employer elects to develop its own notice, the notice must be “substantially similar” to the Labor Commissioner’s notice.

AB 2992: AB 2992 (enacted in 2020, effective January 1, 2021) expands the definition of crime to include any misdemeanor or felony and requires an employer to take no adverse actions against an employee who was a victim of a crime and took time off work to obtain relief. (Lab. Code § 230.(j)(1).)
810.4.1 Leave for Victims of Domestic Violence, Sexual Assault, Stalking or Other Crimes to Obtain Medical Attention or Counseling or Safety Planning Any employee, including a seasonal/temporary employee, who is a victim of domestic violence, sexual assault, stalking, or other crime, may take leave from work to attend to any of the following: obtaining medical attention or psychological counseling; obtaining services from a shelter, program or crisis center; or participating in safety planning or other actions to increase safety, if the employee provides advance notice of the employee’s intention to take time off for these purposes. If advance notice is not feasible, the employee must provide any of the following to the City of Point Arena within a reasonable time after the leave: a police report indicating that the employee was a victim; a court order protecting the employee from the perpetrator; evidence from the district attorney or court that the employee has appeared in court; or documentation from a health care provider or counselor that the employee was undergoing treatment for physical or mental injuries or abuse. The leave is unpaid unless the employee elects to use Healthy Workplace Healthy Family Act of 2014 sick leave, accrued vacation or personal leave, or compensatory time off.

Commentary:

Public Agencies with 25 or More Employees: This leave only applies to public agencies who have 25 or more employees and is not mandatory for agencies with less than 25 employees. (Lab. Code § 230.1(a).) This leave is in addition to the leave that victims of domestic violence, sexual assault, or stalking may receive for the purpose of obtaining restraining 92 orders or injunctive relief. Although this leave law does not permit an employee to use sick leave to receive pay during this leave. (Lab. Code § 230.1(e), the Healthy Workplace Healthy Family Act of 2014 does allow an employee to use paid sick leave of up to three (3) days/shifts, or 24 hours, whichever is greater, per year for this purpose.) (Lab. Code § 246.5(a)(2).)
810.5 Bereavement Leave
All employees who have been employed by the City of Point Arena for at least 30 days are entitled to five (5) days of paid bereavement leave in the event of the death of a “family member”
A “family member” means a spouse, domestic partner, child, stepchild, parent, grandparent, grandchild, sibling, parent-in-law.

An employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off in order to provide for their compensation during any bereavement leave in excess of five (5) days.

An employee who utilizes bereavement leave shall notify the City Manager of the intent to use such leave. Employees may use such leave on a non-consecutive basis in the three (3) months that follow that date of death of the “family member.”
Commentary:

New Employee Right to Protected Bereavement Leave: AB 1949 (enacted September 2022; effective January 1, 2023) requires employers to provide at least five (5) days unpaid, but protected, bereavement leave to an employee in the event that a “family member” of the employee dies. (Gov. Code § 12945.7(b).) Here, while the law only requires five days of unpaid leave, this policy provides for five days of paid leave so as to be in line with the standard industry practice. Please see the commentary below regarding the customization of this policy.

AB 1949 defines “family member” to mean a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law as defined in Government Code section 12945.2. (Gov. Code § 12945.7(a)(3).)
AB 1949 entitles employees three (3) months to use such leave, and authorizes the nonconsecutive use of such leave (Gov. Code § 12945.7(c) and (d).) AB 1949 entitles employees use vacation, personal leave, accrued and available sick leave, or compensatory time off in order to provide for their compensation during any unpaid bereavement leave. (Gov. Code § 12945.7(e)(3).)
Customize This Policy: Neither state nor federal law requires an employer to provide paid 93 bereavement leave. However, public agencies routinely provide it for humanitarian purposes. Your agency can determine how much paid bereavement leave to provide; some agencies provide longer leaves for employees to travel out of state or out of the country. Your agency can modify this policy to provide unpaid bereavement leave. However, the statutory minimum remains at least five (5) days unpaid, but protected, bereavement leave. 810.6 Military Leave
Military leave will be granted in accordance with federal and state law. An employee requesting leave for this purpose shall promptly provide the City Manager with a copy of the military orders specifying the dates, site and purpose of the activity or mission. Within the limits of such orders, the City Manager may determine when the leave is to be taken and may modify the employee’s work schedule to accommodate the request for leave.

Commentary:

Case-by-Case Analysis: Due the length and complexity of the military leave laws, drafting a policy that covers all aspects of military leave is extremely difficult and would be very lengthy. Federal and state military leave laws provide different rights depending upon the type of military service and/or the branch of armed forces at issue. In each case, a factintensive review and legal analysis is required to determine the following: (1) the amount of leave; (2) whether the leave is paid or not; (3) reinstatement rights; and (4) rights to benefits during leave.
810.7 School-Related Leave
810.7.1 School or Licensed Day Care Activity Leave
Any employee who is a parent, guardian, stepparent, foster parent, grandparent, or person who stands in loco parentis to one or more children who are in kindergarten or grades 1 through 12, or who are in a licensed child care facility, shall be allowed up to 40 hours each school year, not to exceed eight hours in any calendar month of the school year, to: participate in activities of their child’s school or licensed child care facility; find, enroll, or reenroll a child in a school or with a licensed child care provider; or to pick up a child due to a child care provider or school emergency. The employee must provide reasonable advance notice to their supervisor of the planned absence. The leave is unpaid unless the employee uses vacation, personal leave or compensatory time off. The employee must provide documentation from the school or licensed child care facility as verification that the employee participated in school or child care facility activities on a specific date and at a particular time. If both parents, guardians or grandparents having custody work for the City of Point Arena at the same City of Point Arena work site, only the first parent requesting will be entitled to leave under this provision.

Commentary:
94 Public agencies With 25 or More Employees: This leave only applies to public agencies of 25 or more employees working at the same location. (Lab. Code § 230.8(a).) Effective January 1, 2016, the California Legislature extended the reasons for this leave to cover the following: finding, enrolling or reenrolling a child in school or with a licensed day care provider; and to pick up a child as a result of an emergency relating to a school or a licensed child care provider. (Lab. Code § 230.8(a)(1)(A) and (B).) Emergencies are defined as a request from the school or the child care provider that the child be picked up; behavioral or discipline problems; unexpected closure; or a natural disaster. (Lab. Code § 230.8(e)(2).) The January 1, 2016 law also extends the list of employees who can use the leave. (Lab.

Code § 230.8(e)(1).)
810.7.2 Child Suspension Leave
Any employee who is the parent or guardian of a child in kindergarten through grade 12 may take time off to go to the child’s school in response to a request from the child’s school, if the employee gives advance notice to their supervisor. A school has the authority to request that the parent attend the child’s school if the child has: committed any obscene act; habitually used profanity or vulgarity; disrupted school activities; or otherwise willfully defied the valid authority of school personnel.

Commentary:

Applies to All Employers: This leave applies to all public agencies, regardless of workforce size, and to all employees, regardless of status. (Lab. Code § 230.7.) A public school can request a parent to attend the school pursuant to Education Code sections 48900 and 48900.1. (Lab. Code § 230.7.)
810.8 Paid Administrative Leave
The City of Point Arena has the right to place an employee on leave with full pay for nondisciplinary reasons at any time when the City Manager has determined that the employee’s and/or City’s best interests warrant the leave. The employee does not have a right to appeal the decision to be placed on administrative leave with pay.

Commentary:

Paid Administrative Leave: Paid administrative leave is generally used whenever the employee is ready and willing to come to work, but the employer directs the employee to stay home. Unless the employer pays the employee for the forced absence, the leave becomes a pay reduction which will either violate due process for a for-cause employee, or violate the salary test for a white-collar overtime exempt employee. Paid administrative leave is commonly used when an investigation into the employee’s misconduct is ongoing. However, paid administrative leave may be considered in various other scenarios and an agency may 95 want to seek advice of legal counsel before placing an employee on paid administrative leave.
810.9 Leave of Absence without Pay Must Be Authorized by Law or these Policies Unless authorized by law or a City of Point Arena policy, an employee is not entitled to a leave of absence without pay. An authorized leave of absence without pay is not a break in service for purposes of calculating seniority. Unless required by law, vacation leave credits, sick leave credits, increases in salary, all other paid leaves, holidays and fringe benefits and other similar benefits do not accrue to an employee on unpaid leave. Unless required by law, the City of Point Arena will not maintain contributions toward group insurance or retirement coverage for the employee on such leave. During the period of authorized unpaid leave, all service and leave credits shall be retained at the levels existing as of the effective date of the leave.

Commentary:

Do Not Provide Unpaid Leave Unless a Specific Leave Law or Policy Requires It: Many of the leave laws listed in this section allow an employee to take leave without pay. In that case, the employer is required to provide that leave. In addition, an employer may provide leave without pay as an accommodation for a disability in order to comply with federal and state anti-disability discrimination laws. Some of the federal or state leave laws also require that the employer continue group health benefits – such as PDL or FMLA leave. Generally, public agencies should not to place an employee on unpaid unless either of the following apply: (1) there is a leave law that requires leave without pay; or (2) the leave is to provide a reasonable accommodation.

Customize this Policy: This policy states that agency-provided benefits do not accrue while on unpaid leave. If this is not the case in your agency, then replace the following sentence:
“Unless required by law or Agency [policy, ordinance, resolution, code], vacation leave credits, sick leave credits, increases in salary, all other paid leaves, holidays and fringe benefits and other similar benefits do not accrue to an employee on unpaid leave.” with this sentence: “Vacation leave credits, sick leave credits, increases in salary, and all other paid leaves, holidays and fringe benefits and other similar benefits continue to accrue to an employee on unpaid leave.”
810.10 Industrial Injury Leave
810.10.1 Employees Not Covered by Labor Code Section 4850 Employees, other than those covered by Labor Code section 4850, who are absent from work by reason of an injury or illness covered by Workers’ Compensation, shall continue in pay status under the following provisions.
810.10.1.1 Coordination of Benefits
96 When the employee authorizes, the difference between the amount granted pursuant to such Workers’ Compensation and the employee’s regular pay will be deducted from the employee’s accumulated sick leave, vacation, personal holidays, and compensatory time, if any. The employee will continue in pay status and receive their pay until their accumulated sick leave, and authorized compensatory time, personal holidays and vacation days, have been depleted to the nearest hour.
810.10.1.2 Accrual of Sick and Vacation Leave Continues While on Paid Leave During the time the employee is in fully paid status while absent from work by reason of injury or illness covered by Workers’ Compensation, they shall continue to accrue sick leave and vacation benefits as though they were not on leave of absence. 810.10.1.3 Unpaid Leave and Continuation of Health Care Benefits Any employee subject to this policy who depletes their accumulated sick leave, compensatory time, personal holiday time and vacation days while absent from work by reason of an injury or illness covered by Workers’ Compensation may receive an unpaid leave of absence and continuation of health care benefits consistent with state and/or federal law. 810.11 Time Off to Vote
If any employee does not have sufficient time outside of working hours to vote, may request up to two (2) hours of paid leave either at the beginning or end of scheduled working hours to enable them to vote. The employee must request time off to vote from their supervisor at least two (2) days prior to Election Day.

Commentary:

Time Off to Vote: California law requires time off to vote for any employee, regardless of status, and requires an employee to provide notice of the need for time off no later than the third (3rd) day before the election. (Election Code § 14000.) 97 900 Resignation, Job Abandonment, Layoff, and Separation 902 Resignation, Job Abandonment, Layoff and Separation 902.1 Types of Separation
All separations of employees from positions in City of Point Arena employment are designated as one of the following types:
(a) Probationary Release;
(b) Release of a seasonal/temporary employee;
(c) Resignation;
(d) Retirement;
(e) Job abandonment;
(f) Layoff;
(g) Non-disciplinary separation; or
(h) Disciplinary separation.
902.2 Probationary Release
Probationary employees serving in their initial probationary period with the City of Point Arena may be released at any time during the probationary period as recommended by the City Manager, without cause or reason or notice. A released probationary employee has no right to appeal or to submit a grievance.

Commentary:

Release of Probationary Employee: If your agency decides to release a probationary employee, it is critical to do so while the employee is still serving the probationary period.

Case law generally holds that once the probationary period is over, the employee attains permanent, for-cause status. (Winter v. City of Los Angeles (2002) 96 Cal.App.4th 1058.) 98 902.3 Release of [Seasonal/Temporary/Extra Help Employees] A seasonal or temporary employee may be separated at any time, without cause, and without right to any appeal or grievance.
902.4 Resignation
An employee who wishes to resign their City of Point Arena employment in good standing must submit written notice of resignation to the City Manager at least two weeks prior to the planned separation date. The written notice must state the reasons for the resignation. Failure to follow the aforementioned procedure may be cause for denying future employment with the City of Point Arena. A resignation becomes final when the City Manager accepts the resignation in writing. Once a resignation has been accepted, it is final and irrevocable. A resignation can be accepted by the City Manager even if it is submitted less than two weeks prior to the planned resignation date.

Commentary:

Accept Resignation Immediately and in Writing: The best practice is to accept a resignation as quickly as possible in writing. This is because contract principles of offer and acceptance apply. A notice of resignation is an offer that can be withdrawn at any time before it is accepted. Accepting a resignation transforms the offer into a binding contract. This policy directs your agency to accept the resignation in writing so that it is easier for your agency to prove when acceptance occurred. It is usually not preferable to second guess the employee’s resignation, offer the employee incentives to not resign, or try to talk the employee out of resigning.
902.5 Retirement
An employee planning to retire may provide a written notice to the City Manager prior to the effective date of the retirement. A notice of retirement becomes final when the City Manager accepts the notice of retirement in writing. Once a notice of retirement has been accepted, it is final and irrevocable.
99 902.6 Job Abandonment
An employee is deemed to have resigned from their position if they are absent for five (5) consecutive scheduled work days/shifts without prior authorization and without notification during the period of the absence. The employee will be given written notice, at their address of record, of the circumstances of the job abandonment, and an opportunity to provide an explanation for the employee’s unauthorized absence. An employee who promptly responds to the agency’s written notice, within the timeframe set forth in the written notice, can arrange for an appointment with the City Manager before final action is taken, to explain the unauthorized absence and failure of notification. An employee separated for job abandonment will be reinstated upon proof of justification for such absence, such as severe accident, severe illness, false arrest, or mental or physical impairment which prevented notification. No employee separated for job abandonment has the right to a post-separation appeal.

Commentary:

Job Abandonment: Job abandonment is not equivalent to dismissal for cause according to the California Supreme Court, so therefore, no post-separation appeal is available. (Coleman v. Dept. of Personnel Admin. (1991) 52 Cal.3d 1102.) Instead, job abandonment is viewed as a decision on the employee’s part to end employment. The written notice of job abandonment should lay out the circumstances of the abandonment much like a notice of intent to terminate, but using non-disciplinary terms. Because job abandonment is viewed as a resignation, a post-abandonment evidentiary appeal is not necessary. In order to prevent separating an employee because of disability, be sure to reinstate any employee who later justifies an absence with evidence of a disability.
902.7 Layoff
Whenever, in the judgment of the City Manager, a reduction in personnel is necessary for economic or operational reasons, any employee may be laid off or demoted for non-disciplinary reasons.

Commentary:

The Governing Body Makes the Layoff Decision: This policy gives the governing body the authority to make the decision to lay off employees. The decision to layoff is a fundamental management decision about what services an agency can afford or wants to provide, and how many employees are needed to provide the desired level of services. No single employee is considered in the decision to layoff; instead, a layoff is driven by the needs of the agency as a whole and the direction that the governing body has decided to take the agency. Because a layoff is driven by management decisions about agency needs or agency economics, and not about the conduct of any employee, layoffs do not trigger an employee’s pre- or postdisciplinary right of appeal. 100
Two other factors make it important for the governing body to make the decision that a layoff is necessary: (1) legislative actions often carry an immunity from suit that can help avoid potential liability arising from a layoff; and (2) for general law cities, the law requires the governing body to make the decision. (See Gov. Code § 45100.) 902.7.1 Order of Layoffs
Employees will be laid off in the inverse order of their seniority in their classification in the department. Seniority is determined based on the length of employment in the affected classification in the department, or higher classifications in the department. Length of employment includes all days of employment in attendance at work and on authorized or legallyprotected leaves of absence. Length of service does not include unauthorized periods of leave or suspension or layoff. Within each classification, employees will be laid off in the following order: temporary; part-time; probationary; and for-cause status. If two or more employees in a classification to be laid off have the same length of employment, the employee to be laid off will be decided by lottery.

Commentary:

Seniority: This policy uses seniority in the affected classification to determine who is to be laid off. The legislative bodies of general law cities are required to use “the seniority rule” in putting a layoff into effect. (Gov. Code § 45100.) Using seniority is a benefit because it is a neutral standard that has nothing to do with the particular employee’s work performance or conduct. Using seniority as the basis for layoff will help avoid claims of discrimination, bias, or that the layoff decision is a pretext for terminating an under-achieving employee.

Using performance evaluation ratings as a basis for layoff is not recommended because of the subjective nature of the evaluation ratings. In addition, using performance evaluation ratings shifts the layoff decision from the agency as a whole to a decision about the worthiness of an individual employee, and could trigger the use of pre-and post-disciplinary due process procedures.
902.7.2 Notification of Layoff
Employees to be laid off will be given 21 calendar days’ notice of layoff.

Commentary:

Customize This Policy: Your agency can select a length of time for notice that suits your agency’s needs. This policy suggests a 21-day notice, but your agency can select a longer period of time. A shorter period of time is not advisable because of time needed to review transfers, displacements, and appeals.
902.7.3 Displacement
101
For-cause employees who are noticed for layoff and who have held for-cause status in a lower classification within the same classification series in the same department, may displace employees in the lower classification provided that the employee seeking to displace has greater length of employment in the lower classification than the incumbent in the lower classification.

Employees in lower classifications will be displaced in inverse order of their length of employment in the classification. Any employee who seeks to displace another must provide the City Manager with written notice no later than five (5) working days after the date of the notice of layoff.

Commentary:

Limitation of Displacement Rights: This policy limits displacement rights to lower classifications in the same department. The logic is that employees in different departments will have different expertise that will not translate into other departments. Your agency can allow agency-wide displacements if experience in a classification in one department is relatively similar.
902.7.4 Transfer
If the City Manager determines that a for-cause employee who is subject to layoff is qualified to perform the duties in a vacant position, the employee will receive a written notice of option to transfer in lieu of layoff. An employee who does not accept a transfer within 10 days after the date of the written notice, forfeits the option to transfer. An employee who accepts a transfer will be paid the rate applicable to the position into which they transfer.

Commentary:

Transfer in Lieu of Layoff: There is no legal requirement to allow a transfer in lieu of layoff, but it is a way to retain talent that would otherwise be lost. This policy avoids favoritism or bias by requiring the transferee to be qualified for the position. 902.7.5 Appeal
An employee who has been noticed for layoff, and who has any questions or concerns about the layoff decision or process may make an appointment to be heard by the City Manager for an informal pre-layoff review. The employee must request this appeal in writing within five (5) business days from the date of the notice of layoff. The City Manager’s decision is final.

Commentary:

Pre-Layoff Review: Public agencies that do not follow a purely seniority-based system for layoffs should give employees who are laid off an opportunity to challenge the decision to layoff in light of Levine v. City of Alameda (9th Cir. 2008) 525 F.3d 903. In Levine, an employee to be laid off claimed that the decision was a pretext and that the real reason for the employee’s layoff was that the City Manager did not like the employee. The appeal 102
provision above allows the agency an informal meeting with the employee to assess claims of either pretext or inaccurate seniority calculations and address them before the layoff occurs. 902.8 Non-Disciplinary Separation
Any employee separated because of an inability to accommodate after the reasonable accommodation and interactive process is concluded, will be given a written pre-separation notice of the reasons for the separation, the evidence supporting the decision to separate for nondisciplinary reasons, and an opportunity to respond before the separation takes effect. Any for cause employee has the opportunity for a post-separation appeal as described in Policy 1002, Causes for Discipline and Procedures.

Commentary:

Follow the Skelly Letter Process for Inability to Accommodate: Any employee, regardless of status, should receive a notice of intent identifying the reasons for a separation because of inability to accommodate. The notice should explain all of the Agency’s interactive process and reasonable accommodation efforts, and why there was no reasonable accommodation or why providing an accommodation would constitute an undue hardship, or result in a threat to the employee or others. In that way, the agency proves that the reason for separation was not related to the disability or sincerely held religious belief, but the lack of any reasonable accommodation.
902.9 Disciplinary Separation
A for-cause employee may be separated for disciplinary reasons pursuant to these policies and procedures.
902.10 Return of City Property
All City of Point Arena property in the employee’s possession must be returned prior to separation, including keys, key fobs, identification cards, equipment, credit cards, gas cards, cell phones, pagers, and any other City of Point Arena equipment. 902.11 Job References/Verification of Employment
All reference inquiries and verifications of employment must be referred to and approved by the City Manager. Unless the City Manager receives a written waiver signed by the employee, the City of Point Arena will release only the employee’s dates of employment, last position held, and final salary rate. No other employees should provide information in response to requests for reference checks or verification of employment, unless specifically approved by the City Manager on a case-by-case basis.
103
Commentary:

Best Practices: It is a best practice to have job references go through the Personnel Officer.

We have seen many other department directors and department heads release derogatory or unsupported information in response to a reference check. Another best practice is to provide only dates of employment, final job and salary in response to a reference check unless you have a signed waiver from the employee that releases your agency from all liability. 1000 Discipline
1002 Causes for Discipline and Procedures
1002.1 Causes for Discipline
Employees may be disciplined for, including but not limited to, any of the following causes of discipline:
(a) Violation of any department rule, City of Point Arena policy or regulation, ordinance or resolution;
(b) Absence without authorized leave or tardiness;
(c) Excessive absenteeism and/or tardiness as defined by the employee’s City Manager, and/or these Policies;
(d) Use of leave from work in a manner not authorized or provided for under City of Point Arena policies;
(e) Making any false representation or statement, or making any omission of a material fact; (f) Providing wrong or misleading information or other fraud in securing appointment, promotion or maintaining employment;
(g) Unsatisfactory job performance;
(h) Inefficiency;
(i) Damaging any City of Point Arena property, equipment, resource, or vehicle, or the waste of City of Point Arena supplies through negligence or misconduct. (j) Insubordination; or insulting or demeaning the authority of a supervisor or manager; (k) Dishonesty;
(l) Theft;
104
(m)Violation of the City of Point Arena’s or a department’s confidentiality policies, or disclosure of confidential City of Point Arena information to any unauthorized person or entity;
(n) Misuse or unauthorized use of any City of Point Arena property, including, but not limited to: physical property, electronic resources, supplies, tools, equipment, City of Point Arena communication systems, City of Point Arena vehicles or intellectual property;
(o) Mishandling of public funds;
(p) Falsifying or tampering with any City of Point Arena record, including work time or financial records;
(q) Discourteous or offensive treatment of the public or other employees; (r) Abusive conduct, including malicious verbal, visual or physical actions, or the gratuitous sabotage or undermining of a person’s work performance. (s) Conviction, meaning any judicial determination of guilt, of a crime that has a nexus to the employee’s job duties;
(t) Unapproved outside employment or activity, or other enterprise that constitutes a conflict of interest with service to the City of Point Arena;
(u) Any conduct that impairs, disrupts or causes discredit to the City of Point Arena, to the public service, or other employee’s employment;
(v) Reckless or unsafe conduct;
(w)Working overtime without prior authorization or refusing to work assigned overtime; (x) Carrying firearms or other dangerous weapons while on duty when not required by job duties; or
(y) Horseplay or fighting.

Commentary:

Causes for Discipline: The above causes for discipline set standards of conduct for all employees and is not an exhaustive list of all the grounds that could lead to discipline. Your agency should modify the grounds to best suit it. Although at-will categories of employees (e.g., probationary, seasonal, temporary, or extra help) can be held to these standards, your agency generally should not cite a reason for the release of an at-will employee. Do not use the pre- and post-disciplinary due process procedures in this policy to release at-will 105
employees because those procedures only apply to for cause employees. If the reason for the release of an at-will employee is for misconduct that stigmatizes their reputation such that it is more difficult to obtain future employment, and the reason has been provided to the employee or made public, the employee may be entitled to a “name clearing” meeting (also known as liberty interest or Lubey meeting) with the appointing authority before the date of release. (Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340; Katzberg v.

Regents of the University of California (2002) 29 Cal.4th 300, 305.) Abusive Conduct: California law requires public agencies of 50 or more to include, as part of the bi-annual supervisory training on the prevention of harassment, a discussion about abusive conduct. (Gov. Code § 12950.1(b).) The definition of “abusive conduct” requires that the employee act with a malicious intent, which is often difficult to prove. (Gov. Code § 12950.1(g)(2).) As a result, do not charge an employee with abusive conduct unless you have evidence that the employee: (1) intended to act in a manner to cause hurt to another; or (2) acted with reckless disregard of the hurt their conduct would cause. 1002.2 Types of Counseling, Reprimands and Discipline
The following are types of counseling, reprimands and discipline which the City of Point Arena may impose:
(a) Counseling Memo: A counseling memo will be provided to an employee to identify: a failure of appropriate conduct or performance issue; the performance the employee is to demonstrate in the future; and consequences for failure to correct the behavior or problem. A counseling memo will be retained in the supervisor’s file until the completion of the evaluation year, and then documented in the performance evaluation, as the supervisor deems necessary. A counseling memo is not subject to the discipline or discipline appeal procedures described below. A counseling memo is not considered “punitive action” under the Public Safety Officers Procedural Bill of Rights Act (b) Verbal Reprimand: A verbal reprimand is a verbal direction from a supervisory employee to discontinue inappropriate conduct or to correct a performance issue. A verbal reprimand will be documented in writing and retained in the supervisor’s file until the completion of the evaluation year and then documented in the performance evaluation, as the supervisor deems necessary. A verbal reprimand is not subject to the discipline or discipline appeal procedures described below.
(c) Written Reprimand: A written reprimand is written direction from a supervisory employee to discontinue inappropriate conduct or to correct a performance issue. A written reprimand will be retained in the employee’s personnel file and documented in the performance evaluation. Unless required by law, a written reprimand is not subject to the discipline or discipline appeal procedures described below. The employee has the right to have their written rebuttal attached to the reprimand in the employee’s personnel file, if the employee submits the rebuttal to the City Manager within 14 days after the reprimand is received.
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(d) Suspension without Pay: The City of Point Arena may suspend an employee from their position without pay for cause. Documents related to a suspension shall become part of the employee’s personnel file when the suspension is final and documented in the performance evaluation. A suspension without pay is subject to the discipline and discipline appeal procedures described below. Employees who are exempt from FLSA overtime will only be suspended as authorized by the FLSA.

Commentary:

FLSA-Exempt Employees: Salary Reductions in Full Workweeks or For Major Safety Violations: Note that FLSA-exempt employees cannot be disciplined via salary reduction.

FLSA-exempt employees can only be suspended in the following circumstances: (1) for the entire FLSA-designated work week (29 C.F.R. § 541.602(a)); (2) for one or more full days for violation of a written workplace conduct rule (e.g., violation of harassment, discrimination and retaliation policy); or (3) for one or more full days for a major safety violation (e.g., relating to the prevention of serious danger in the workplace or to other employees, such as rules prohibiting smoking in explosive plants, oil refineries and coal mines). (29 C.F.R. § 541.602(b)(4), (5).)
(e) Reduction in Pay or Paid Leave: The City of Point Arena may reduce an employee’s pay or paid leave for cause. A reduction in pay for disciplinary purposes may take one of three forms: (1) a decrease in salary to a lower step within the salary range; (2) a decrease in salary paid to an employee for a fixed period of time; or (3) loss of accrued paid vacation or administrative leave, floating holiday, or compensatory time off. Documents related to a reduction in pay shall become part of the employee’s personnel file when the reduction in pay is final and documented in the performance evaluation. A reduction in pay is subject to the discipline and discipline appeal procedures described below.

Employees who are exempt from the FLSA overtime requirements are not subject to pay reduction, except loss of accrued vacation, floating holiday, or administrative leave.

Commentary:

FLSA-Exempt Employees: Leave Reductions: The FLSA views deductions from paid leave banks as distinctly different from the prohibited deductions from salary. (Barner v. City of Novato (9th Cir. 1994) 17 F.3d 1256, 1261.) As a result, your agency can reduce the leave of a FLSA-exempt employee in any increment – one day, five days, 10 days, etc. (f) Demotion: The City of Point Arena may demote an employee from their position to a lower position for cause. Documents related to a demotion shall become part of the employee’s personnel file when the demotion is final and documented in the performance evaluation. A demotion is subject to the discipline and discipline appeal procedures described below.
(g) Dismissal: The City of Point Arena may dismiss an employee from their position for cause. Documents related to the dismissal shall become a part of an employee’s personnel 107
file when the dismissal is final. A dismissed employee is entitled to the discipline and discipline appeal procedures described below.
1002.3 Discipline Procedures
The following discipline procedures only apply to the City of Point Arena’s for-cause employees. All employees other than for-cause employees, namely seasonal/temporary/extrahelp/at-will/ probationary employees, may be disciplined or separated at will, with or without cause, and without the disciplinary procedures listed below. The following discipline procedures apply only to suspension without pay, reduction in pay, demotion, or dismissal.

Commentary:

Suspension without Pay and Pay Reductions: A suspension without pay or a pay reduction generally triggers procedural due process. Case law suggests, however, that suspensions of five or fewer days would not trigger disciplinary due process, unless a past practice, MOU, or rule provides otherwise. (Civil Service Assn v. Local 400 v. City and County of San Francisco (1977) 22 Cal.3d 552, 562-65.) The above policy follows common practice and provides disciplinary due process for any length of suspension. (a) “Skelly” Notice of Intended Disciplinary Action to Employee: A written notice of the intended disciplinary action shall be given to the employee, which will include the following information:
1) The level of the intended discipline;
2) The specific charges that support the intended discipline; 3) A summary of the facts that show that the elements of each charge at issue in the intended discipline;
4) A copy of all materials upon which the intended discipline is based; 5) Notice of the employee’s right to respond to the City Manager regarding the intended discipline within five (5) days from the date of the notice, either by requesting a Skelly conference, or by providing a written response, or both; 6) Notice of the employee’s right to have a representative of their choice at the Skelly conference; and
7) Notice that failure to respond by the time specified constitutes a waiver of the right to respond prior to final discipline being imposed.

Commentary:
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Supporting Materials: The California Supreme Court has held that the pre-deprivation Notice of Intended Disciplinary Action, (i.e., Notice of Intent or Skelly notice), must be accompanied by “a copy of the ... materials upon which the action is based.” (Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215.) This does not mean that the employer must produce every potentially relevant document along with the Notice of Intent. “Constitutional principles of due process do not create general rights of discovery.” (Gilbert v. Sunnyvale (2005) 130 Cal.App.4th 1264, 1280.) All that the employer is required to provide at the Skelly pre-deprivation stage is a sufficient amount of supporting materials to explain or provide notice of the substance of the employer’s supporting evidence so that the employee can adequately respond at their Skelly conference. (Cleveland Bd. of Educ. v. Loudermill (1985) 470 U.S. 532, 546; Brock v. Roadway Ex. (1987) 481 U.S. 252, 260, 264.) It is best practice to provide the employee all documents with the Skelly notice that the employer relied upon in reaching the disciplinary decision and that the employer would need to use as evidence at the evidentiary hearing, should the employee appeal the decision to discipline. (b) Response by Employee and Skelly Conference: If the employee requests a Skelly conference, the City Manager or designee will conduct an informal meeting with the employee. During the informal meeting, the employee shall have the opportunity to rebut the charges against them and present any mitigating circumstances. The City Manager will consider the employee’s presentation before issuing the disciplinary action. The employee’s failure to attend the conference, or to deliver a written response by the date specified in the Skelly notice, is a waiver of the right to respond, and the intended disciplinary action will be imposed on the date specified in the Skelly letter.

Commentary:

Pre-Disciplinary Response by Employee: The Skelly officer hosts the meeting to hear the employee’s pre-disciplinary response to the Notice of Intended Disciplinary Action. The same person may make the proposed decision, hear the employee’s pre-disciplinary response, and then make a disciplinary decision that is subject to an evidentiary appeal. (Flippin v. Los Angeles City Board of Civil Service Comm’rs. (2007) 148 Cal.App.4th 272, 282-83; see also Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215; Los Angeles Police Protective Leave v. City of Los Angeles (2002) 102 Cal.App.4th 85, 93-94.) Thus, there is no constitutional need to assign different managers to issue the Notice of Intent and to host the pre-disciplinary conference. However, it may make sense for an agency to assign different personnel to issue a proposed notice of discipline and to preside over the Skelly conference.
(c) Final Notice of Discipline: After the Skelly conference and/or timely receipt of the employee’s written response, the City Manager will: (1) take no disciplinary action; (2) modify the intended discipline; or (3) impose the intended disciplinary action. In any case, the City Manager will provide the employee with a notice that contains the following:
1) The level of discipline, if any, to be imposed and the effective date of the discipline;
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2) The specific charges upon which the discipline is based; 3) A summary of the facts that show that the elements of each charge at issue in the intended discipline;
4) A copy of all materials upon which the discipline is based; and 5) A reference to the employee’s appeal right and deadline to appeal. (d) Delivery of the Final Notice of Discipline: The final notice of discipline will be sent by mail method that verifies delivery to the last known address of the employee, or delivered to the employee in person. If the notice is not deliverable because the employee has moved without notifying the City of Point Arena or the employee refuses to accept delivery, the effective date of discipline will be the date the post office or delivery service attempted delivery.
1002.4 Discipline Appeal Procedures
The following appeal procedures only apply to the City of Point Arena’s for-cause employees.

All employees other than for-cause employees, namely seasonal/temporary/at-will/probationary employees, may be disciplined or separated at will, with or without cause, and without the disciplinary appeal procedures listed below. The following appeal procedures apply only to suspension without pay, demotion, reduction in pay or dismissal. (a) Request for Appeal Hearing: An employee may submit a written request for appeal to the City Manager within 14 days from: (1) receipt of the final notice of discipline; or (2) the date of attempted delivery by the post office or delivery service of the notice to the last known address of the employee. Failure to file a timely written request for an appeal waives the right to an appeal hearing and any appeal of the discipline. (b) Appeal Hearing Officer: The appeal hearing officer shall be the City Manager or an individual designated by the City Manager who is selected through State Mediation and Conciliation Service (“SMCS”)/the California Office of Administrative Hearings (“OAH”) so long as the City Manager did not serve as the Skelly officer for the discipline at issue. If the City Manager served as the Skelly officer for the discipline at issue, then the appeal hearing officer shall be an individual designated by the City Council who is selected through SMCS/OAH].

Commentary:

Appeal Hearing Options: This first option for the appeal hearing officer provides for the general manager, city manager, or administrative officer, or a delegated hearing officer to serve as the appeal hearing officer. Oftentimes, the general manager, city manager, or administrative officer will not have the time to hear a multi-day disciplinary appeal, and that the hearing officer duties will be delegated. Accordingly, the first option provides the 110
California Office of Administrative Hearings (“OAH”) or the State Mediation and Conciliation Service (“SMCS”) as options for the selection of a designated hearing officer.

The OAH has offices in Sacramento, Oakland, Los Angeles, and San Diego. Administrative Law Judges are trained in conducting hearings and are selected in a random rotation by the OAH. The SMCS also provides a panel of arbitrators who may serve as hearing officers if hearing officer duties are delegated. Selecting a designated hearing officer through OAH or SMCS hearing officer reduces the possibility of a claim of bias in the selection. (See Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 133 Cal.Rptr.2d 234.) The second option assumes that the general manager, city manager, or administrative officer will not serve as the appeal hearing officer, and automatically utilizes the OAH or SMCS to select the hearing officer.
(c) Date and Time of the Appeal Hearing: Once the appeal hearing officer has been designated, the City Manager will set a date for an appeal hearing. The employee shall be notified in writing at least 21 days prior to the hearing of the scheduled date. (d) Prehearing Notice of Witnesses and Evidence: No later than 10 days before the hearing date, each party will provide the other and the appeal hearing officer a list of all witnesses to be called (except rebuttal witnesses), and a copy of all evidence (except rebuttal evidence) to be submitted at the hearing. The City of Point Arena will use numbers to identify its evidence; the employee will use alphabet letters. Neither party will be permitted to call any witness or evidence that has not been listed, unless that party can show that the party could not have reasonably anticipated the need for the witness or exhibit.
(e) Subpoenas: Upon the request of either party, and upon their own motion, the hearing officer will issue subpoenas to compel attendance at the appeal hearing. Each party is responsible for serving their/its own subpoenas. City of Point Arena employees who are subpoenaed to testify during working hours will be released with pay to appear at the hearing. City of Point Arena employees who are subpoenaed to testify during nonworking hours will be compensated for the time they actually spend testifying. (f) Continuances: The appeal hearing officer may continue a scheduled hearing only upon good cause shown.
(g) Record of the Appeal Hearing: The hearing shall be recorded, either electronically or by a court reporter, at the option of the City of Point Arena. If the City of Point Arena orders a transcript or makes a transcript of the recording, the City of Point Arena will notify the employee within three days of ordering or making the transcript, and will provide a copy of the transcript upon receipt of the costs of duplication.

Commentary:

A Reliable Record of the Appeal Hearing is Required: General law cities must comply with Government Code section 45004.1, subdivision (b), which requires a city or city officer who 111
orders or makes a transcript of the hearing to provide the employee with a copy of the transcript upon receipt of copying charges. Because a court reporter’s fees can be expensive, the policy gives the agency the option of audio recording or hiring a court reporter. The hearing transcript will be a critically important document should the employee challenge the hearing decision to the superior court. Unless your agency has excellent and reliable audio recording equipment, the cost of the court reporter is well worth the money so that there is a reliable record of the proceedings. In addition, if the agency decides to not use a court reporter, because any party to an arbitration is permitted to have a certified shorthand reporter transcribe the hearing, the agency must allow for the employee’s certified shorthand reporter to transcribe the hearing if so requested. The resulting transcript will then be deemed the official record of the hearing.
(h) Employee Appearance: The employee must appear personally before the hearing officer at the time and place set for the hearing. The employee may be represented by any person they may select.
(i) Conduct of the Hearing:
1) Sworn Testimony: All witnesses shall be sworn in prior to testifying. The hearing officer or court reporter shall request each witness to raise their hand and respond to the following: “Do you swear that the testimony that you are about to give is the truth, the whole truth, and nothing but the truth?”
2) Evidence: Hearings need not be conducted according to technical rules relating to evidence and witnesses, but hearings shall be conducted in a manner that the hearing officer decides is the most conducive to determining the truth. The rules dealing with privileges shall be effective to the same extent that they are recognized in civil actions. Irrelevant or unduly repetitious evidence may be excluded. The appeal hearing officer shall determine the relevance, weight and credibility of testimony and evidence.
3) Exclusion of Witnesses: During the examination of a witness, all other witnesses, except the parties, shall be excluded from the hearing. 4) Burden of Proof: The City of Point Arena has the burden of proof by the preponderance of the evidence.
5) Authority of Hearing Officer: The appeal hearing officer shall not have the power to alter, amend, change, add to, or subtract from any of the terms of these Policies. 6) Professionalism: All parties and their attorneys or representatives shall not, by written submission or oral presentation, disparage the intelligence, ethics, morals, integrity or personal behavior of their adversaries or the appeal hearing officer. (j) Presentation of the Case: The parties will address their remarks, evidence, and objections to the appeal hearing officer. The appeal hearing officer may terminate argument at any 112
time and issue a ruling regarding an objection or any other matter. The appeal hearing officer may limit redundant or irrelevant testimony, or directly question the witness. The hearing will proceed in the following order unless the appeal hearing officer directs otherwise:
1) The City of Point Arena is permitted to make an opening statement; 2) The employee is permitted to make an opening statement; 3) The City of Point Arena will produce its evidence;
4) The employee will produce its evidence;
5) The City of Point Arena, followed by the employee, may present rebuttal evidence; and
6) Oral closing arguments of no more than 20 minutes may be permitted at the discretion of the appeal hearing officer. The City of Point Arena argues first, the employee argues second, and if the City of Point Arena reserved a portion of its time for rebuttal, the City of Point Arena may present a rebuttal. (k) Written Briefs: Either party may request to submit a written brief and/or a draft decision.

The appeal hearing officer will determine whether to allow written briefs or draft decisions, the deadline for submitting briefs, and the page limit for briefs. (l) Appeal Hearing Officer’s Recommended Decision: Within 60 days of the conclusion of the hearing, the appeal hearing officer shall make written findings and a recommended decision as to the discipline.
1) If the City Manager was not the appeal hearing officer or the Skelly officer they shall review the findings and recommendations of the appeal hearing officer and may then affirm, revoke, or modify the findings, recommendations, or disciplinary action taken.

The decision of the City Manager is final. There is no process for reconsideration. 2) If the City Manager was the Skelly officer, the City Council shall review the findings and recommendations of the appeal hearing officer and may then affirm, revoke, or modify the findings, recommendations, or disciplinary action taken. The decision of the City Council is final. There is no process for reconsideration. (m)Proof of Service of the Written Findings and Decision: The City of Point Arena will mail a copy of the final written findings and decision, along with a proof of service of mailing that confirms that each of the parties and each of the parties’ representatives were mailed the final written findings and decision. It shall be the responsibility of the employee to inform the City of Point Arena of their address. A copy of the decision shall also be provided to the City Manager.
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Commentary:

Strict Proof of Service Requirements: The 90-day statute of limitations only starts running if the agency mails the written findings and decision with a proof of service to the employee’s address. (Code of Civ. Proc. § 1094.6(b); Donnellan v. City of Novato, 86 Cal.App.4th 1097 (2001).) It is perfectly fine to include the attorney on the proof of service, but the employee’s address also must be listed on the proof of service.

Challenge by Writ: Pursuant to Code of Civil Procedure section 1094.6, the parties have 90 days from the date of the proof of service of mailing of the written findings and decision to appeal the agency’s decision on the appeal to the Superior Court. 1100 Grievances 1102 Grievance Procedures
1102.1 Definition of a Grievance
A grievance is an alleged violation of a specific provision of these Policies that adversely affects the employee and that contains all of the information listed in the “Statement of the Grievance” below. The following procedure applies to all City of Point Arena employees, unless the following apply: the employee is covered by a grievance procedure in a memorandum of understanding; another dispute resolution procedure applies to the dispute; or a discipline policy and procedure applies. The grievance procedure cannot be utilized to challenge the content of a performance evaluation.

Commentary:

Definition of “Grievance”: This definition limits the scope of the grievance procedure to an alleged violation of these Policies. Employees who are covered by a MOU can use the MOU grievance procedure for alleged MOU violations. This definition prevents the use of the grievance procedure if another dispute resolution procedure applies. By requiring that the employee be aggrieved by the alleged violation, this definition precludes class action grievances. Finally, the definition excludes grievances regarding the content of a performance evaluation; an employee could still grieve the failure to receive a performance evaluation. The agency should not limit the scope of the grievance procedure too much because then the employer will lose the benefit of a grievance procedure – to allow the employer to attempt to resolve issues before they become claims or lawsuits. 1102.2 Statement of the Grievance
A concern is not a grievance unless the affected employee is able to state each of the following:
the date of the alleged violation; the specific provision(s) of these policies that were allegedly violated; a description of all facts regarding how the alleged violation occurred; and a list of all persons who are witnesses or are involved. The grievant may use a City of Point Arena form to make the Statement of the Grievance. A Statement of the Grievance must be signed by the employee filing the grievance to certify that it is filed in good faith. 114
Commentary:

Factual Basis Required to Support Grievance: This policy requires the grievant to provide certain categories of facts and information in order to state a grievance. This policy allows the grievant to use an agency form or to simply state the grievance in any writing, such as email. The goal is to encourage the resolution of complaints in a streamlined manner and with the minimum of process.
1102.3 Timelines
Failure of the City of Point Arena to comply with the time limits of the grievance procedures allows the grievant to appeal to the next level of review. Failure of the grievant to comply with the time limits of the grievance procedures constitutes settlement and resolution of the grievance on the basis of the last disposition. The parties may extend time limits by mutual written agreement in advance of a deadline.

Commentary:

Timelines: Timelines encourage prompt resolution of complaints. Management’s failure to meet a timeline moves the grievance to the next level, while failure of the grievant to timely act constitutes settlement and resolution of the grievance on the basis of the last disposition. 1102.4 Procedures
(a) Step I Informal Resolution with Supervisor: The employee must first work in good faith to resolve the grievance informally through discussion with their immediate supervisor no later than 14 days after the grievant first became aware of the facts or circumstances resulting in the filing of the grievance.
(b) Step II City Manager: If the employee believes that the grievance has not been resolved through Step I, the employee may submit a written Statement of the Grievance to their City Manager. The employee must submit the Statement of the Grievance within 28 days after the grievant first became aware that a grievance has occurred. The City Manager shall consider, discuss the grievance with the grievant, and/or investigate as they deems appropriate, and shall, within 14 days of receipt of the written Statement of the Grievance, submit their decision in writing to the grievant. (c) Step III City Manager: If the employee believes that the grievance has not been resolved through Step II, the employee may appeal the grievance decision of the City Manager to the City Manager. Such appeal must be filed within 14 days of the date of the City Manager’s written decision. The City Manager shall consider, discuss the grievance with the grievant, and/or investigate as he/she deems appropriate, and shall, within 14 days of receipt of the written Statement of the Grievance, submit their decision in writing to the grievant. The decision of the City Manager shall be final. 115
Commentary:

Investigation and Documentation in a Separate Grievance File: It is critical to undertake some level of inquiry or investigation into an alleged grievance in order to determine what occurred. The above policy gives the decision maker discretion to determine the level of discussion and investigation that is necessary for each case. Be sure to document your investigation in a grievance file. In order to avoid retaliation claims, and to promote fairness, all documentation of a grievance is filed in a grievance file, and not in the grievant’s personnel file.
1200 Miscellaneous Policies
1202 Personnel Files
1202.1 Confidential City of Point Arena Files
The City of Point Arena maintains a personnel file on each employee. Files are kept for at least three years after separation of employment. A personnel file will contain only material that the City of Point Arena deems necessary and relevant or that is required by law. Personnel files are the property of the City of Point Arena, and access to the information they contain is restricted to protect employee privacy interests.

Commentary:

Maintenance of Personnel Files: Labor Code section 1198.5, subdivision (c), provides for the maintenance of personnel files after the separation of an employee. (Lab. Code § 1198.5(c)(1).)
The personnel file is the agency’s not the employee’s property. It is the agency’s legal record of an employee’s pay, benefits, work performance, and attendance. Your agency is not required to follow requests from employees to store information in their personnel files.

Confidentiality: SB 1131 (enacted in September 2022; effective September 2022) allows certain qualified election workers to apply for the protection of the confidentiality of their personal identifying information. A provision addressing this development can be found in Policy 1221.
1202.2 Notification of Changes
Each employee is responsible to promptly notify the City Manager of any changes in their contact and benefits information, including: mailing address; telephone number; persons to contact in emergency; and number and names of dependents. 116
1202.3 Access to Applicant or Employee Medical Information All medical information about an employee or applicant is kept in separate medical files and is treated as confidential. Access to employee or applicant medical information shall be strictly limited to only those with a legitimate need to have such information for City of Point Arena business reasons, or if access is required by law, subpoena or court order. In the case of an employee with a disability, managers and supervisors may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations.

Commentary:

Medical Information: Title 2 of the California Code of Regulations section 11069, subdivision (g), provides for an employee or applicant’s access to medical information. 1202.4 Employee Access to Personnel File
(a) Inspection of File: A current employee may inspect their own personnel file, at reasonable times and at reasonable intervals, within 30 days of a written request. A former employee is entitled to inspect their personnel records one time per year. A current or former employee and/or their representative, who wishes to review their personnel file should make a written request to the City Manager. The inspection must occur in the presence of the City Manager or their designee and: (1) at a location where the employee works and at a time other than the employee’s work time; or (2) at another agreed upon location without loss of compensation to the employee. (b) Copies: A current or former employee is entitled to receive a copy of their personnel records within 30 days after the employer receives a written request. A current or former employee who wishes to receive such a copy should contact the City Manager or their designee in writing. The City of Point Arena may charge a fee for the actual cost of copying.
(c) Representative’s Inspection: If the current or former employee wishes to have another person/representative inspect their personnel file, they must provide the person/representative with written authorization. The City Manager or their designee will notify the employee and/or representative of the date, time and place of the inspection in writing.
(d) No Removal of File Documents: No person inspecting a personnel file is permitted to add or remove any document or other item to/from the personnel file.

Commentary:

Provision of and Limitations on Access: AB 2674 (enacted in 2012; effective January 1, 2013) amended Labor Code section 1198.5 to allow former employees access to the personnel file, to add time limits to inspection and copying, and to allow representatives to inspect and receive copies. The amendments also limit employee representatives to 50 117
requests in each calendar month to inspect and receive a copy of personnel records. (Lab.

Code § 1198.5(p).) While your agency can certainly invoke this 50-request limitation, it is not listed in this policy so as to not set a floor for requests from representatives. 1202.5 Limitations on Access or Copying of Personnel File Prior to making a copy of personnel records or allowing inspection, the City of Point Arena may redact the names of nonsupervisory employees. Under no circumstances will the City of Point Arena provide access or copying of the following categories of personnel file documents: records relating to the investigation of a possible criminal offense; letters of reference; ratings, reports, or records that were obtained prior to employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination.

Commentary:

Review the File before You Allow Copying or Inspection: The personnel file is your agency’s official record, so it is critical to carefully review a personnel file before copying it or allowing a representative or employee to inspect it. Despite careful filing, an item may be misfiled. For example, drafts of a grievance investigation may be improperly filed in the personnel file, instead of in separate grievance files. To maintain privacy of other employees, your agency can redact the names of nonsupervisory employees from personnel file records prior to inspection or copying. (Lab. Code § 1198.5(g).) In addition, the copying and inspection rights do not extend to the particular categories of documents listed in this rule. (Lab. Code § 1198.5(h).)
1204 Limitations on Outside Employment
1204.1 No Outside Employment Without Prior Approval
An employee shall not engage in any paid or self-employment, activity, or enterprise which is inconsistent, incompatible or in conflict with their City of Point Arena duties, functions, responsibilities, or that of the department in which they are employed at the City of Point Arena. In order to avoid perceived or actual conflicts of interest that may arise from outside employment, all employees must obtain written approval from the City Manager or their designee prior to undertaking any outside employment as described in this policy Commentary:

Inconsistent, Incompatible or Conflicting Employment: Government Code section 1126, subdivision (a), provides for the adoption of rules concerning inconsistent, incompatible or conflicting employment. (Gov. Code § 1126(a).)
1204.2 Authorization and Appeal Process
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(a) Written Request: Any employee who wants to undertake a paid outside employment, activity, or enterprise must submit a written request to their City Manager. The written request must include: (1) the work hours and/or time required; (2) job title or the nature of the activity; (3) the work location; and (4) the supervisor, manager and name of the employer or activity.
(b) Analysis and Decision: The City Manager will determine if the outside employment, activity, or enterprise is compatible with the employee’s employment at the City of Point Arena. If the City Manager determines such activity is compatible, or would be if any conditions or restrictions applied, they will authorize the activity and specify the conditions/restrictions in writing, give the employee the outside employment authorization, and place a copy of the written authorization in the employee’s personnel file. (c) One (1) Year Authorization: An outside employment authorization is valid only up to one (1) year. Should the employee continue the outside employment, activity, or enterprise for a longer duration, they must make another request following the process in this policy.
(d) Appeal: If the City Manager denies an employee’s outside employment request, the employee may submit a written notice of appeal to the City Manager within 10 days after the date of the denial. The decision on appeal will be put in writing, provided within 10 days after the receipt of the appeal, and will be final.

Commentary:

Adoption of Local Rules: California law requires a local agency to adopt rules to regulate incompatible outside activities. (Gov. Code § 1126(c).) Those rules must include an appeal process. (Gov. Code § 1126(c).) Your agency can adjust the decision makers on the initial decision and appeal to suit the size of your agency. It is typical to authorize outside employment for a year at a time.
1204.3 Prohibited Outside Activities
An employee’s outside employment, activity, or enterprise may be prohibited if it:
(a) Involves the use for private gain or advantage of City of Point Arena time, facilities, equipment, and supplies, or the badge, uniform, prestige, or influence of the City of Point Arena or employment at the City of Point Arena;
(b) Involves receipt or acceptance by the employee of any money or other consideration from anyone other than the City of Point Arena for the performance of an act which the employee would be required or expected to render in the regular course of their City of Point Arena employment;
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(c) Involves the performance of an act in other than their capacity as a City of Point Arena employee which act may later be subject directly or indirectly to the control, inspection, review, audit, or enforcement by such employee or the department by which he/she is employed; or
(d) Involves time demands that would render the employee’s performance of their regular City of Point Arena employment less efficient or dangerous to the employee.

Commentary:

Incompatible Activities: These four factors above are listed in the Government Code as incompatible activities for local agency employees. (Gov. Code § 1126(b).) 1204.4 Changes in Outside Employment Status
The employee must promptly report in writing to the City Manager any of the following changes that may occur during the year of an authorized outside employment: the outside employment ends; or the authorized employment changes as to the number of work hours, location, or types of duties.
1204.5 Revocation / Suspension of Outside Employment Authorization Any outside employment authorization may be revoked or suspended during the year it is granted under the circumstances listed below. An employee may appeal the revocation or suspension as provided in this policy.
(a) The employee’s work performance declines; or
(b) An employee’s conduct or outside employment conflicts with the conditions of the outside work authorization or is incompatible with the employee’s work for the City of Point Arena.
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1204.6 Use of City of Point Arena Equipment Prohibited
Under no circumstances may an employee use any City of Point Arena equipment, vehicles, tools, supplies, machines, or any other item that is City of Point Arena property while an employee is engaged in any outside employment, activity or enterprise. 1206 Limitations on Political Activity
1206.1 No Solicitation During Work Hours or City of Point Arena Offices City of Point Arena employees or officers may not solicit or receive political funds or contributions to promote the passage or defeat of any ballot measure that would affect working conditions during the working hours of its officers and employees, or in City of Point Arena offices.

Commentary:

Solicitation and Receipt of Political Funds and Contributions: Government Code section 3209 provides for the solicitation and receipt of political funds and contributions. (Gov.

Code § 3209.) The Court of Appeal upheld the lawfulness of personnel rules prohibiting solicitations during work hours. (Superior Court of Fresno v. Public Employment Relations Board (2018) 30 Cal.App.5th 158.) However, the Court of Appeal held that a personnel rule prohibiting solicitations in “working areas” was overbroad and impermissibly interfered with employees’ protected rights to distribute literature in non-work areas during non-work time. (Id.)
Note that the National Labor Relations Board (“NLRB”), which provides persuasive authority for PERB, held that an employer may lawfully restrict solicitations in “working areas”, but not non-working areas. (Wal-Mart Stores and Organization United for Respect at Walmart (“Our Walmart”), (2019) NLRB Cases 13-CA-114222 and 32-CA-111715.) 1206.2 No Targeted Solicitation of City of Point Arena Officers or Employees Officers or employees of the City of Point Arena, or candidates for elective office of the City of Point Arena, may not directly or indirectly solicit political contributions from other officers or employees of the City of Point Arena unless the solicitation is part of a solicitation made to a significant segment of the public which may incidentally include officers from and employees of the City of Point Arena.

Commentary:

Solicitation of Funds from Officers and Employees: Government Code section 3205 provides for the solicitation of political funds and contributions from agency officers and employees. (Gov. Code § 3205(c).)
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1206.3 No Political Activity in Uniform
No City of Point Arena employee or official shall participate in political activities of any kind while in an City of Point Arena uniform or other City of Point Arena-issued clothing.

Commentary:

Political Activity While in Uniform: Government Code section 3206 prohibits political activity while in uniform. (Gov. Code § 3206.)
1206.4 No Political Activity on City of Point Arena Property or Work Hours City of Point Arena employees and officials are prohibited from engaging in political activity during working hours or on City of Point Arena property.

Commentary:

Political Activity during Working Hours and on Work Premises: Government Code section 3207 prohibits political activity during working hours and on work premises. (Gov. Code § 3207.)
Public agencies must be careful not to limit the political activities of employees except as provided above. The California Legislature has determined that the political activities of public employees are a matter of statewide concern, and as a result, charter cities, charter counties, and other local entities cannot make laws that conflict with the Policies above. (Gov. Code § 3201.) Furthermore, public agencies risk violating an employee’s First Amendment rights by taking action because of an employee’s exercise of free expression or the employer’s mistaken belief that the employee exercised their right of free expression. (Heffernan v. City of Paterson, 136 U.S. 1412 (2016).
1208 Prohibitions on Drugs and Alcohol in the Workplace 1208.1 Purpose and Scope
The purpose of this policy is to promote a drug and alcohol-free workplace and to eliminate drug and alcohol-related inefficiencies and risks. This policy applies to all City of Point Arena employees, whether they are on City of Point Arena property, or they are performing City of Point Arena-related business elsewhere, except as this policy is superseded by a memorandum of understanding or federally mandated drug and alcohol policies. Compliance with this policy is a condition of employment. Disciplinary action will be taken against those who violate this policy.
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1208.2 Drug- and Alcohol-Free Awareness Program
The City of Point Arena’s employee assistance provider offers counseling and treatment of drug- or alcohol-related problems. The employee assistance provider has information about: (1) the dangers of drug or alcohol abuse in the workplace; (2) the penalties that may be imposed for drug or alcohol abuse violations; (3) the City’s policy of maintaining a drug- and alcohol-free workplace; and (4) any available drug or alcohol counseling, rehabilitation or employee assistance programs.

Commentary:

Counseling and Treatment of Drug- or Alcohol-Related Problems: Government Code section 8355, subdivision (a) and the United States Code provide guidance concerning counseling and treatment of drug- or alcohol-related problems. (41 U.S.C. §§ 701(a)(1)(B), 702(a)(1)(B); Gov. Code § 8355(a)(2).)
1208.3 Prohibited Conduct
(a) The manufacture, distribution, sale, dispensation, possession, or use of any controlled substance, narcotic (including marijuana), or prescription drug that has not been lawfully prescribed to the employee in either City of Point Arena workplaces or wherever City of Point Arena business is performed.
(b) Working or being subject to call in if impaired by alcohol or any controlled substance, narcotic (including marijuana), or prescription drug that has not been lawfully prescribed to the employee.
(c) An employee’s failure to notify their City Manager before beginning work when taking medications or drugs, including but not limited to: prescription drugs, over the counter medications, or illegal drugs or narcotics (including marijuana) which could interfere with the safe and effective performance of duties or operation of City of Point Arena equipment.
(d) An employee’s failure to notify the City Manager of any criminal conviction for a drug violation that occurred in the workplace within five days after such conviction. (e) An employee’s criminal conviction for a drug violation that occurred in the workplace.

Commentary:

Scope of Federal and State Drug Free Workplace Laws: The state and federal drug free workplace acts require that federal or state contractors or grant recipients publish many of the above rules regarding drugs and drug use in order to provide a drug free workplace. (41 U.S.C. §§ 701-706; Gov. Code §§ 8350-8357.) Although these laws only apply to drug use, 123
and to the employees in the particular departments that are providing the contract work or are receiving the grants, many public agencies broaden their application to also include alcohol and publish them in their personnel policies in case of receipt of grant funds or federal or state contracts.

Employer Responsibilities to Sanction and Report That Are Not Listed Here: The federal drug free workplace law requires public agencies that receive grants or contracts to undertake the following actions: (1) impose sanctions or require participation in a drug abuse assistance program within 30 days for employees who are convicted of a criminal drug statute; and (2) inform the granting agency within 10 days after receiving notice of a workplace drug conviction. (41 U.S.C. §§ 701-702.) Those duties are not listed here because they are limited to those agencies that are receiving federal grants or contracts, and because they are agency duties and not employee duties.

Preventing Discrimination on the Basis of Off-Duty Cannabis Use: AB 2188 (enacted in 2022; effective January 1, 2024) amends the FEHA to make it unlawful for an employer to discriminate against an employee or applicant for employment (other than those in the building and construction trades)based upon the person’s use of cannabis off the job and away from the workplace, or the results of an employer-required drug screening test that confirmed the presence of non-psychoactive cannabis metabolites (Gov. Code § 12954(a).) SB 700 (enacted in 2023; effective January 1, 2024) amends the FEHA to make it unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis. (Gov. Code § 12954(b).) The law does not prohibit employers from acting on a scientifically-valid pre-employment drug screening that does not test for non-psychoactive cannabis metabolites is exempted (i.e., psychoactive tetrahydrocannabinol (“THC”)) (Gov. Code § 12954(a.)(1).) The law also does not prohibit employers from taking adverse employment actions against employees who possess, use, or are impaired by cannabis or from maintaining policies and practices consistent with a drug-free workplace. (Gov. Code § 12954(d).) To the extent that there is conflict between the law and state or federal laws requiring drug testing for employees or applicants for employment as a condition of employment, receiving federal funding or federal licensing related benefits, entering into a federal contract, or laws regulating the manner of testing, the laws requiring the drug testing will take precedence and apply. (Gov. Code § 12954(e).)
It should be noted that this policy addresses on the job use of drugs and alcohol. As such, minimal revisions were required by the enactment of AB 2188. If an agency’s policy is more expansive, further revisions will likely be required.
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1208.4 Drug and Alcohol Testing
The City of Point Arena has discretion to test applicants and employees for alcohol and drug use under the following circumstances. The City of Point Arena will use an outside laboratory to perform all testing.
(a) Pre-Employment Testing for External Applicants for Certain Jobs: Those external applicants who apply for certain jobs where a special need for pre-employment drug and alcohol testing exists must take and pass a drug and alcohol test following a conditional offer of employment. The categories of jobs subject to pre-employment drug and alcohol testing include, but is not limited to, the following:
1) Safety sensitive jobs that have public safety implications, such as operating heavy equipment and/or machines, City vehicles, and/or maintenance equipment. 2) Jobs that involve the direct influence over children.

Commentary:

Limitations on Pre-Employment Drug and Alcohol Testing: Federal and state case law limits the authority of a local agency to conduct pre-employment drug and alcohol tests. (Lanier v. City of Woodburn (9th Cir. 2008) 518 F.3d 1147; Loder v. City of Glendale (1997) 14 Cal.4th 846.) As a result of these cases, pre-employment drug or alcohol testing can occur only for external applicants and only for jobs where a “special need” exists for drug and alcohol pre-employment testing, including jobs that have a direct influence on children, or are safety-sensitive. Although the courts have not defined the term “special need,” the decisions indicate that it is broader than the category of “safety sensitive” jobs.

Safety-sensitive jobs involve work that poses a potential danger to the public. The following are examples: police officer; firefighter; employees covered by the Department of Transportation (“DOT”); and water/wastewater operators; work involving the enforcement of drug laws and operating natural and liquefied natural gas pipelines. Public agencies should consult with legal counsel to assess whether a position qualifies as “special need” pre-employment drug testing.

Conduct Pre-Employment Testing after a Conditional Job Offer: Even when a preemployment drug and alcohol test is permissible, an agency should usually not conduct drug testing until it has first extended a conditional offer that is contingent upon passing a medical examination. (Leonel v. American Airlines, Inc. (9th Cir. 2005) 400 F.3d 702, 708-712.) Similarly, an agency should not test for alcohol abuse until after a conditional offer because alcoholism is a recognized disability under the federal and state non-discrimination laws. (U.S. EEOC Enforcement Guidance: Medical Examinations and Inquiries (Dec. 1995).) (b) Reasonable Suspicion Testing: The City of Point Arena may require a blood test, urinalysis, or other drug and/or alcohol screening of those employees who are reasonably suspected of using or being under the influence of a drug or alcohol at work, under the following circumstances.
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1) “Reasonable suspicion” to test exists if, based on objective factors, a reasonable person would believe that the employee is under the influence of drugs or alcohol at work. Examples of objective factors, include, but are not limited to: unusual behavior, slurred or altered speech, body odor, red or watery eyes, unkempt appearance, unsteady gait, lack of coordination, sleeping on the job, a pattern of abnormal or erratic behavior, a verbal or physical altercation, puncture marks or sores on skin, runny nose, dry mouth, dilated or constricted pupils, agitation, hostility, confused or incoherent behavior, paranoia, euphoria, disorientation, inappropriate wearing of sunglasses, tremors, or other evidence of recent drug or alcohol use. If City of Point Arena suspects drugs or alcohol may have played a role in an accident involving City of Point Arena property or equipment that will also constitute reasonable suspicion. 2) Document and Analysis: In order to receive authority to test, the City Manager must record the factors that support reasonable suspicion in writing. Any reasonable suspicion testing must be pre-approved by the City Manager. 3) Testing Protocol: If the documentation and analysis show that there is a reasonable suspicion of drug or alcohol abuse at work, and the City Manager has approved, the employee will be relieved from duty, transported to the testing facility and to their home after the test. The employee will be placed on sick or other paid leave until the test results are received.

Commentary:

Duty to Bargain with Employee Organizations: A reasonable suspicion or alcohol testing policy is not enforceable on employees who are represented by employee organizations unless the employer has first provided notice of the policy, and opportunity to bargain, and bargaining to impasse, if necessary. (See Holliday v. City of Modesto (1991) 229 Cal.App.3d 528.)
Reasonable Suspicion Factors: The policy requires written documentation of all reasonable suspicion factors, and an analysis and discussion with the department director or department head and the human resources department. During the analysis, your agency can contact experts, such as your testing lab or law enforcement department, for input on whether the reasonable suspicion test is met. Your agency’s documentation should include a summary of the analysis and the experts consulted.

Post-Accident Testing: Whereas for DOT-covered employees, there are specific instances spelled out in the regulations that require automatic post-accident drug and alcohol testing, for this general policy, post-accident testing is limited to instances where reasonable suspicion indicators also exist to support testing.

Use a Reputable Testing Facility/Laboratory: A common strategy for opposing a drug- or alcohol-related disciplinary action is to attack the laboratory test or procedures. Make sure your agency has contracted with a reputable company that uses up to date and best practices 126
in testing procedures (e.g., split samples, chain of custody). A positive test result is only as good as the laboratory that provided it.
1210 Use of City of Point Arena Equipment or Resources
1210.1 Policy and Applicability
City of Point Arena equipment and resources may only be used to conduct City of Point Arena business, except for incidental personal use that is consistent with this policy. As a result, City of Point Arena equipment and resources are non-public forums. Every City of Point Arena employee is required to adhere to this policy.

Commentary:

Use of Agency Equipment: This policy applies to all agency equipment and resources, whether physical or electronic. If agency equipment and resources can be used to communicate in any manner, First Amendment free speech protections may limit a public employer’s ability to regulate. This policy limits the use of agency equipment and resources to business communications in order to prevent agency equipment or resources from becoming a “public” or “designated forum” that would trigger the most stringent First Amendment free speech protections. (Clark v. Burleigh (1992) 4 Cal.4th 474, 483; see also Cornelius v. NAACP Legal Defense and Education Fund, Inc. (1985) 473 U.S. 788, 806.) The reason for the exception for incidental personal use communications is discussed in the commentary below that section. This policy does not apply to the use of agency buildings or rooms, since those uses generally also involve the general public. 1210.2 Agency Equipment or Resources
City of Point Arena equipment or resources is any City of Point Arena-owned or supplied item or resource, including, but not limited to: intellectual property (e.g., photographs, plans, drawings, formulas, customer lists, designs, formulas), vehicles, telephones, cell phones, pagers, tools, machines, supplies, copy machines, facsimile machines, desks, office equipment, computers (including hardware and software), file cabinets, lockers, Wi-Fi, internet, intranet, City of Point Arena network, data systems, routers, voice mail, servers, and email or voice mail communications stored in or transmitted through City of Point Arena electronic resources or equipment.
1210.3 No Expectation of Privacy
The City of Point Arena periodically and without prior notice, monitors, reviews, accesses, or retrieves data from its equipment or resources, including electronic communications and content contained in or transmitted through City of Point Arena networks or electronic resources. City of Point Arena employees must provide the agency with the employee’s username or password for any City of Point Arena issued equipment or resource. The existence of passwords or delete 127
functions does not restrict the City’s access. As a result, City of Point Arena employees have no expectation of privacy in their use of any City of Point Arena equipment or resources.

Commentary:

Expectation of Privacy: This policy cautions employees that their use of agency equipment or resources is not private. It is critical for public agencies not to encourage or imply privacy in the use of its equipment or resources. For example, establish protocols that give network administrators access to all agency electronic resources. (Lab. Code § 980(d).) Do not allow employees to install private locks on desks, doors, cabinets or lockers.

Furthermore, do not allow employees to reprogram electronic locks. 1210.4 Appropriate Use Only -- No Misuse
Employees may only use City of Point Arena equipment or resources in compliance with City of Point Arena policies. Except as authorized by this policy, employees are expected to avoid any use or communication which is unrelated to City of Point Arena business, destructive, wasteful, or illegal. The City of Point Arena has discretion to restrict or rescind employee access to City of Point Arena equipment or resources. The following are examples of misuse of City of Point Arena equipment or resources:
(a) Any use that violates applicable law and/or City of Point Arena policies, rules or procedures;
(b) Exposing others to material which is offensive, harassing, obscene or in poor taste. This includes information which could create an intimidating, offensive or hostile work environment;
(c) Any use that may create or further a hostile attitude or give offense on the basis of race, color, religion, sex, gender, gender expression, gender identity, national origin, ancestry, citizenship, age, marital status, physical or mental disability, medical condition, genetic information, sexual orientation, veteran status or any other basis protected by law; (d) Communication of confidential City of Point Arena information to unauthorized individuals within or outside of City of Point Arena;
(e) Unauthorized attempts to access or use City of Point Arena data or break into any City of Point Arena or non-City of Point Arena system;
(f) Theft or unauthorized transmission or copying of paper or electronic files or data; (g) Initiating or sustaining chain/spam letters, e-mail or other unauthorized mass communication;
(h) Misrepresentation of one’s identity for improper or illegal purposes; 128
(i) Personal commercial or business activities (e.g., “for sale” notices, personal ads, etc.); (j) Transmitting/accessing obscene material and/or pornography; (k) E-Commerce;
(l) Online gambling;
(m)Installing or downloading unauthorized software or equipment; (n) Violating terms of software licensing agreements; and (o) Using City of Point Arena equipment or resources to access and/or use dating web resources, personal social media, or games of any type.

Commentary:

Limitations on the Use of Agency Property: The above provision prohibits using agency property or electronic resources to access dating websites, social media or games of any type. Public agencies are prohibited from asking employees for their personal social media passwords or requesting employees to divulge their personal social media accounts, except in certain circumstances. (Lab. Code § 980.) Consistent with this California law that personal social media is personal, this policy prohibits employees from using agency equipment to access personal social media. This provision does not, however, prevent employees from accessing personal social media through their own devices or cell phones during their break times.
(p) Any unauthorized access to City of Point Arena equipment or resources, including:
using keys or key cards; using or disclosing the username or password of another person or employee to gain access to their email or other electronic resources; or making City of Point Arena equipment or resources available to others who would otherwise have no authorized access.
(q) Using City of Point Arena equipment or resources to speak on the City of Point Arena’s behalf without authorization.
1210.5 City of Point Arena Email Address Must be Used for City of Point Arena Business
The City of Point Arena’s email system is an official communication tool for City of Point Arena business. The City of Point Arena establishes and assigns official email addresses to each employee as the City of Point Arena deems necessary. Employees must send all City of Point Arena communications that are sent via email to and from their official City of Point Arena email address. Employees are prohibited from using their private email address when 129
communicating City of Point Arena business via email. Should an email related to City of Point Arena business be sent to an employee’s personal email account, the email should be immediately forwarded to the employee’s City of Point Arena email account and responded to accordingly.
1210.6 Incidental Personal Use of City of Point Arena Communications Equipment Permitted
Employees may use City of Point Arena telephones, cell phones, internet access, and e-mail for incidental personal communications provided that the use:
(a) Is kept to a minimum and limited to break times or non-working hours; (b) Does not interfere or conflict with City of Point Arena operations or the work performance of any City of Point Arena employees;
(c) Allows the employee to more efficiently perform City of Point Arena work; (d) Is not abusive, illegal, inappropriate, or prohibited by this policy (for example, no social media use, no electronic dating, no gaming); and
(e) Clearly indicates it is for personal use and does not indicate or imply City sponsorship or endorsement.

Commentary:

Incidental Use of Agency Equipment: Incidental personal use of agency communications equipment will inevitably occur. As long as incidental use is kept to a minimum, however, it may enhance employee efficiency.

PERB holds that an agency must grant employees access to the employer’s email system for concerted activities/employee organization activities during non-work-time. (Napa Valley Community College District (2018) PERB Dec. 2563-E.) PERB’s decision was based on an NLRB decision, Purple Communications, Inc. (2014) 361 NLRB 126. The NLRB recently overruled that decision in Caesars Entertainment, Inc. (2019) NLRB Case 28-CA-060841.

However, despite the Caesars holding, PERB is unlikely to change its position. As a result, until PERB decides otherwise, your agency should continue to follow the current PERB position concerning employees’ use of agency email systems during non-work time.

In addition, California law prohibits public agencies from taking adverse actions against employees for disclosing/communicating about wages and working conditions. (Lab. Code §§ 232, 232.5.) For all of these reasons, this policy allows incidental personal use during nonwork times. 130
1212 Policy against Violence in the Workplace
Commentary:

Workplace Violence Prevention Plan: SB 553 (Enacted in 2023; Effective January 1, 2024) requires that employers establish, implement and maintain a Workplace Violence Prevention Plan (“WVPP”). (Lab. Code § 6401.7(a)(7); 6401.9.) However, this requirement does not become operative until July 1, 2024. (Lab. Code § 6401.9(i).) The Department of Industrial Relations (“DIR”) will prepare for employer’s use a model Injury and Illness Prevention Program (“IIPP”) that provides for and conforms to the requirements of the WVPP. (Lab.

Code § 6401.7(j).) Prior to July 1, 2024, employers should establish and implement a WVPP that provides for and conforms to the requirements set forth in Labor Code section 6401.9.

Employers should further revise their existing Policy against Violence in the Workplace to refer employees to the WVPP and to remove inconsistent components of their Policy against Violence in the Workplace.

Union Authority to Seek Temporary Restraining Orders: SB 553 (Enacted in 2023; Effective January 1, 2024) authorizes an employee organization that represents an employee, in addition to the employer, to seek a temporary restraining order and an order after hearing on behalf of the employee and other employees at the workplace. (Civ. Proc. Code § 527.8(a).) However, this authority does not become operative until January 1, 2025. (Civ.

Proc. Code § 527.8 (z).) The bill would require an employer or an employee organization, before filing such a petition, to provide the employee who has suffered unlawful violence or a credible threat of violence from any individual an opportunity to decline to be named in the temporary restraining order. (Civ. Proc. Code § 527.89(e).) Under the bill, an employee’s request to not be named in the temporary restraining order would not prohibit an employer or employee organization from seeking a temporary restraining order on behalf of other employees at the workplace, and, if appropriate, other employees at other workplaces of the employer. (Civ. Proc. Code § 527.89(e).).
1212.1 Safe and Secure Workplace
The City of Point Arena is committed to providing a safe and secure workplace and will not tolerate acts or threats of violence in the workplace. The workplace includes any location where City of Point Arena business is conducted, including vehicles and parking lots. Any violation of this policy may lead to criminal prosecution, and/or disciplinary action, up to and including termination.

Commentary:

Safe and Secure Workplace: California law requires an employer to “furnish employment and a place of employment that is safe and healthful for the employees therein.” (Lab. Code § 6400.) In addition, each California employer must have an Illness and Injury Prevention Program (“IIPP”) that includes a plan for workplace health and safety. (8 C.C.R. § 3203.) As provided in the commentary above, no later than July 1, 2024, employers will need to 131
establish, implement and maintain a WVPP to address issues related to workplace violence.

This policy is designed to provide general standards for employee conduct prior through June 30, 2024. This policy will need to be supplemented with the provisions set forth in the Labor Code section 6401.9 in order to conform to and comply with the new legal requirements that become operative July 1, 2024.
1212.2 Prohibited Behavior
Employees are prohibited from participating in or promoting acts of intimidation, violence, threats, coercion, assault and/or abusive behavior toward any person while in the course of City of Point Arena employment. The City of Point Arena has zero tolerance for any conduct that references workplace violence, even if it was intended to be harmless, humorous, a prank, blowing off steam, or venting.
1212.3 “Workplace Violence”
“Workplace violence” is defined as any conduct that causes an individual to reasonably fear for their personal safety or the safety of their family, friends, and/or property. Specific examples of workplace violence include, but are not limited to, the following:
(a) Threats or acts of physical harm directed toward an individual or their family, friends, associates, or property;
(b) The destruction of, or threat of destruction of City of Point Arena property or another employee’s property;
(c) Fighting, challenging another person to fight, or participating in dangerous or threatening horseplay;
(d) Striking, punching, slapping, or assaulting another person; (e) Grabbing, pinching, or touching another person in an unwanted way whether sexually or otherwise;
(f) Harassing or threatening phone calls;
(g) Surveillance;
(h) Stalking; and
(i) Possessing a weapon(s) during work hours unless the City of Point Arena issues the weapon(s) for performance of the job. “Weapon” is defined as a firearm, chemical agent, club or baton, knife, or any other device, tool, or implement that can cause bodily harm if 132
used as a weapon or displayed in such a manner to cause harm or threaten a person with harm.
1212.4 Incident Reporting Procedures
(a) Employees must immediately report to their supervisor or department director whether they have been a victim of, or have witnessed, workplace violence. The supervisor or department director will immediately report the matter to the City Manager (b) The City Manager or their designee will document the incident, including the employee names(s), date/time, location, incident description, witness names and statements, description of unidentified parties, description of the act(s) and/or behavior arising from the incident, action taken, and provide any other relevant information regarding the incident.
(c) The City Manager or designee will take appropriate steps to provide security, such as:
1) Placing the employee alleged to have engaged in workplace violence on administrative leave, pending investigation;
2) Asking any threatening or potentially violent person to leave the site; or 3) Immediately contacting an appropriate law enforcement agency. 1212.5 Investigation
The City Manager will see that reported violations of this policy are investigated as necessary. 1212.6 Prevention
Each City Manager has authority to enforce this policy by:
(a) Training supervisors and subordinates about their responsibilities under this policy; (b) Assuring that reports of workplace violence are accurately and timely documented and addressed;
(c) Notifying the City Manager and/or law enforcement authorities of any incidents; (d) Making all reasonable efforts to maintain a safe and secure workplace; (e) Maintaining records and follow up actions as to reports of workplace violence; and 133
(f) Seeking a temporary restraining order on behalf of an employee Employer Authority to Seek Temporary Restraining Orders: An employer may seek a temporary restraining order and an order after hearing on behalf of the employee and other employees at the workplace. (Civ. Proc. Code § 527.8(a).)
1214 Appearance Standards
1214.1 Basis for Standards
These dress code, tattoo, and body piercing appearance standards are designed to promote the City’s legitimate and non-discriminatory goals to promote workplace safety and a professional image that is consistent with the employee’s job duties and level of public contact.

Commentary:

Appearance Standards: Appearance standards can impact not only an employee’s highlypersonal self-image, but also their constitutional liberty interests, rights to free speech, religion, and a hostility-free work environment. (See Anderson v. City of Hermosa Beach (9th Cir. 2010) 621 F.3d 1051, 1059-1063.) California law allows public agencies to impose reasonable appearance standards, but must allow employees to dress consistent with their gender identity or gender expression. (Gov. Code §§ 12926(q); 12949.) California law also specifically allows women to wear pants to work. (Gov. Code § 12947.5) Although courts generally uphold more restrictive appearance standards for law enforcement and fire protection personnel cannot impose total bans on piercings and tattoos or religious related clothing. (Kelley v. Johnson (1976) 425 U.S. 238.)
Because appearance standards are highly personal and implicate a variety of laws and constitutional standards, it is critical to base appearance standards on objective standards and not subjective opinions. Legally enforceable appearance standards must have a rational relationship to the following: (1) legitimate workplace safety; (2) level of contact with the public; (3) type of work performed; and (4) allow for reasonable accommodation for disabilities, religious expression, and freedom of expression. 1214.2 Dress Code
Employees are required to dress appropriately for the jobs they are performing. The following dress code regulations shall apply to all City of Point Arena employees. If an employee has questions about how these standards apply to them, the matter should be immediately raised with their supervisor for consideration and determination:
(a) All clothing and footwear must be neat, clean, in good repair, and appropriate for the work environment and functions performed;
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(b) Prescribed uniforms and safety equipment must be worn; (c) Hair must be neat, clean and well-groomed;
(d) Beards, mustaches, and sideburns must be maintained in neat and well-groomed fashion; (e) Jewelry that does not pierce the skin is acceptable except where it constitutes a health or safety hazard;
(f) Good personal hygiene is required; and
(g) Dress must be professionally appropriate to the work setting, particularly if the employee has contact with the public at work.

Commentary:

Traits Historically Associated with Race, Including Hair Texture and Hairstyles: SB 188 (enacted in 2019; effective January 1, 2020) amended Government Code section 12926, extending the state’s workplace discrimination protections to cover race-related traits, including hair. The bill expanded the definition of “race” under the FEHA. (Gov. Code § 12926.)
Effective January 1, 2020, “race” will include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” The law further specifies that “protective hairstyles” “includes, but is not limited to, such hairstyles as braids, locks, and twists.” This change in the law includes protection from such discrimination against employees.

Although the bill specifically references black hairstyles, the statutory changes it establishes may be broader. For example, under the new statutory language, it appears public agencies are prohibited from discriminating based on any trait “historically associated with race.” 135
1214.3 Tattoos
Employees are expected to project a professional appearance while at work and must abide by the standards below. If an employee has questions about how these standards apply to them, the matter should be immediately raised with their supervisor for consideration and determination. (a) No tattoos are allowed anywhere on the head, face, or neck; (b) Any visible tattoos shall not be obscene, sexually explicit, discriminatory to sex, race, religion, or national origin, extremist, and/or gang-related; (c) No visible tattoos shall be larger than four (4) by six (6) inches; and (d) Any non-conforming tattoos will be covered with clothing, bandage or makeup while at work, or removed.
1214.4 Piercing
Employees are expected to project a professional appearance while at work and not endanger themselves or others with excessive body piercing. If an employee has questions about how these standards apply to them, the matter should be immediately raised with their supervisor for consideration and determination.
(a) No objects, articles, jewelry or ornamentation of any kind shall be attached to or through the skin if visible on any body part including the tongue or any part of the mouth except that one set of reasonably-sized pierced earrings may be worn in each lobe; (b) Any non-conforming piercing shall be removed, covered with a bandage, or replaced with a clear, plastic spacer.
1216 Teleworking Policy
1216.1 Purpose
The purpose of the policy is to allow certain employees, subject to their execution of a Teleworking Agreement, to Telework from an Alternative Worksite for some or all of their regularly scheduled work hours and to ensure that, for the duration of such Telework, employees perform their job duties, and in so doing provide quality work in a timely manner, and to the benefit of the public.
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Commentary:

Discretionary Policy: This policy is entirely discretionary and public agencies may elect to adopt and implement some, all or none of this policy, depending on their specific needs.

Obligation to Provide Notice and an Opportunity to Bargain: Public agencies should note that teleworking policies affect the terms and conditions of employment, and are therefore subject to negotiation. Prior to adoption of a teleworking policy, an agency should provide notice of the policy and an opportunity to negotiate the policy, and any effects of the policy, to employee organizations that represent agency employees who may be eligible to telework under such policy.
1216.2 Definitions
“Alternative Worksite” means the employee’s home, place of residence or from another location approved by the City of Point Arena other than the employee’s normal workplace at a City of Point Arena worksite or facility.
“Telework(ing)” means a work arrangement under which an employee works from their home, place of residence or from another location other than the employees’ normal workplace at a City of Point Arena worksite or facility (“Alternative Worksite”) for all or a portion of their regularly scheduled work hours.
“Work Schedule” means the days and hours determined by supervisors or managers during which non-exempt, overtime eligible employees should be in attendance at the Alternative Worksite. The Work Schedule shall provide for and include the rest and meal breaks required under applicable federal and state law as well as under contract. 1216.3 Scope of Policy
This policy covers Teleworking voluntarily requested by a City of Point Arena employee and provided by the City of Point Arena, subject to certain conditions and requirements. 137
1216.4 Voluntary Teleworking Arrangements
The City of Point Arena may allow Teleworking for certain eligible employees who request to Telework.
1216.4.1 Eligibility Criteria
The City Manager or their designee, possesses the discretionary authority to determine the job classifications, positions, and employees who are eligible to telework under this policy.

The City Manager or their designee, may make such determination using criteria including, but not limited to, the following:

Commentary:

Customize this policy: Public agencies should review and modify the criteria provided below or develop their own criteria in order to provide for employee eligibility to telework under this policy. Articulating clear, objective, and legitimate non-discriminatory criteria will benefit the agency and its employees, and mitigate the risk of claims or allegations that the policy is discriminatory and/or that it is being administered in a discriminatory manner.

Public agencies may wish to consider the incorporating some or all of the following legitimate and non-discriminatory business criteria into their policies:
(1) The operational needs of the agency and employee’s department and division;
(2) The disruption of or potential for disruption to the agency’s functions; (3) The ability of the employee to perform their job duties (both essential and marginal) from an Alternative Worksite without diminishing the quantity or quality of the work performed;
(4) The degree to which the employee’s job functions require face-to-face interaction with other agency employees, contractors and members of the public;
(5) The employee’s job performance, as determined by their last performance review;
(6) The employee’s length of service with the agency, department or division; (7) The portability of the employee’s work, including the employee’s ability to remotely access tools, equipment, and materials necessary to perform their job functions;
(8) The availability of or ability to create a functional, reliable, healthy, safe, and secure Alternate Worksite for the employee at a reasonable cost; (9) The risk factors associated with performing the employee’s job duties from a location other than the employee’s normal workplace at an agency worksite;
(10) The agency’s capacity to monitor and measure the employee’s work 138
performance at the Alternate Worksite;
(11) The employee’s supervisory responsibilities;
(12) The employee’s need for supervision; and
(13) Other considerations deemed necessary and appropriate by the agency, including tax and other legal implications of teleworking. 1216.4.2 Process for an Employee to Request to Telework To make a request for a Teleworking arrangement, employees must complete a Voluntary Telework Request Form and file the completed request form with their supervisor or manager.

The employee’s supervisor or manager will provide the request form to the City Manager, or their designee, and will discuss the employee’s request with the City Manager, or their designee.

In consultation with or based on information provided by the employee’s supervisor or manager, the City Manager, or their designee, will make a determination regarding the employee’s request to telework.

The City Manager will consider Teleworking requests on a case-by-case basis consistent with the criteria above and other factors relevant to the employee’s request to telework. 1216.4.3 Final Determination; No Right to Appeal
The decision of the City Manager regarding an employee’s Teleworking request is final and binding. Neither the employee nor the employee’s employee organization possesses any right to appeal or grieve the decision.
1216.4.4 Approval of Requests; Voluntary Telework Agreement An eligible and qualified employee who has requested and been granted the opportunity to Telework, must execute a Voluntary Teleworking Agreement (“Agreement”) prior and as a precondition to the employee teleworking.

The Agreement shall provide the mutual understanding of the employee, the employee’s supervisor or manager, and the City Manager concerning the teleworking arrangement.

Commentary:

Customize this policy: Public agencies should include consult with legal counsel in regards to development of the teleworking agreements that accompany this policy.

Such agreements should provide for key terms, including, but not limited to the following:
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(1) The Teleworking Agreement does not constitute employment contracts; (2) The Teleworking employee is subject to the same job duties, responsibilities and expectations as if the employee was working from an agency worksite or facility;
(3) Teleworking is only authorized for the time period specified in the agreement and that the Teleworking Agreement is void and shall not apply after the time expressly provided for in the Agreement;
(4) The agency possesses discretionary authority to terminate the Agreement before the time specified in the Agreement, and the agency’s determination to terminate the Agreement before the time specified in the Agreement is final and not be subject to appeal;
(5) The Teleworking employee’s work schedule and hours, including applicable meal and rest breaks, and whether the work day is continuous or whether work may be performed intermittently;
(6) Teleworking employees are prohibited from performing any off-the-clock work, and employees who perform off-the-clock work may be subject to discipline, up to and including, termination of employment; (7) Teleworking employees are prohibited from performing any overtime, unless they request and receive prior approval for such work by their manager or supervisor, and employees who perform overtime work without prior approval may be subject to discipline, up to and including, termination of employment; (8) Reimbursable expenses associated with Teleworking; and (9) Any breach of the teleworking Agreement by the employee may result in termination of the Agreement and/or disciplinary action, up to and including termination of employment.
1216.5 Mandatory Teleworking Arrangements during Exigent Circumstances Where an exigent circumstance exists, the City of Point Arena may direct City of Point Arena employees to remain at their homes or places of residence and the City of Point Arena adopt and implement a short-term teleworking arrangement for such employees in order to provide for the continuity of essential services provided by the City of Point Arena.

Exigent circumstances means a situation in which there is an imminent threat of extreme peril to life, property and resources. Exigent circumstances may include, but are not limited to, war, public health emergencies, power failures, natural and man-made disasters, and other states of emergency.

Where such an exigency exists and necessitates the adoption and implementation of a short-term mandatory teleworking arrangement for City of Point Arena employees, the City Manager is expressly authorized to suspend some or all provisions of this policy and adopt and implement alternative provisions necessary to provide for the continuity of essential services. 1216.6 Duties, Obligations and Responsibilities for Teleworking Employees 140
Teleworking employees must adhere to the provisions set forth in these policies, including, but not limited to the following:
1216.6.1 General Duties, Obligations, and Responsibilities (a) All existing duties, obligations, responsibilities and conditions of employment remain unchanged. Teleworking employees shall abide by all City of Point Arena and departmental policies and procedures, rules and regulations. (b) All of the Teleworking employees’ existing supervisory relationships, lines of authority and supervisory practices remain in effect.
(c) Teleworking employees authorized to perform work at an Alternate Worksite must meet the same standards of performance and professionalism expected of City of Point Arena employees in terms of job responsibilities, work product, timeliness of assignments, and contact with other City of Point Arena employees and members of the public. (d) Teleworking employees are required to be accessible in the same manner as if they are working at a City of Point Arena worksite or facility during the established teleworking Work Schedule, regardless of the designated location for teleworking, or Alternate Worksite. Teleworking employees must be accessible via telephone, email, and/or network access to their supervisor and other City of Point Arena employees while Teleworking, as if working at their City worksite. Teleworking employees shall check their City of Point Arena-related business phone messages and emails on a consistent basis, as if working at their City of Point Arena worksite. 1216.6.2 Work Schedule, Overtime, Leave, Benefits
(a) For non-exempt employees, the City of Point Arena will either provide such employee:
(1) a work schedule that will be included in the Agreement, and which will include meal and rest breaks (“Work Schedule”); or (2) authorization to work on an intermittent basis. (b) For non-exempt employees assigned a Work Schedule, any deviation from the Work Schedule must be approved in advance, in writing, by the employee’s supervisor or manager and the City Manager.
(c) Non-exempt employees may not Telework outside their normal work hours without prior written authorization from their supervisor or manager and the City Manager. A nonexempt employee who fails to secure written authorization before Teleworking outside their normal work hours may face discipline in accordance with the City of Point Arena’s policy for working unauthorized overtime.
(d) Non-exempt employees, regardless of whether assigned a Work Schedule or authorized 141
to work intermittently, must take meal and rest breaks while Teleworking as required under applicable law and/or under applicable contract or City of Point Arena policy. (e) For non-exempt employees assigned a Work Schedule, all periods of Teleworking employees’ unavailability must be approved in advance by their supervisor or manager and the City Manager in accordance with City policy and documented on the appropriate leave request form.
(f) Non-exempt employees, regardless of whether assigned a Work Schedule or authorized to work intermittently, are required to report in a timely manner all hours worked at the Alternate Worksite and make that record available to their supervisor upon request.

Employees shall record all non-productive work time on their timesheet. (g) Employees shall continue to abide by City of Point Arena policies and procedures for requests of sick, vacation and other leaves of absences. If an employee becomes ill while working under the Agreement, they shall notify their supervisor or manager immediately and record on their timesheet any hours not worked due to illness and/or incapacitation. (h) Non-exempt employees, regardless of whether assigned a Work Schedule or authorized to work intermittently, are required to request to work overtime in advance of doing so and must such requests must be pre-approved in writing by the employee’s supervisor or manager.
(i) Teleworking employees’ salary and benefits remain unchanged during the Teleworking arrangement.
(j) Workers’ Compensation benefits will apply only to injuries arising out of and in the course of employment as defined by Workers’ Compensation law. Teleworking employees must report any such work-related injuries to their supervisor or manager immediately. The City of Point Arena shall not be responsible for injuries or property damage unrelated to such work activities, including injuries to third-persons when said injuries occur at the Alternate Worksite.
1216.6.3 Space and Equipment, Information Security, Confidentiality (a) Teleworking employees will either receive approval to use personal computer equipment or will be provided with City of Point Arena-issued equipment at the discretion of the City Manager.
(b) If the City of Point Arena provided any City of Point Arena-issued equipment, teleworking employees agree to follow the City of Point Arena’s policy for the use of such equipment. Teleworking employees must report to their supervisor any loss, damage, or unauthorized access to City of Point Arena owned equipment, immediately upon discovery of such loss, damage, or unauthorized access. 142
(c) Where, in response to a request to Telework, the City of Point Arena allows an employee to Telework, the City of Point Arena shall not be responsible for Teleworking costs, including, but not limited to, the employee’s use of their home or place of residence, their personal computer, utilities, internet, data, network costs, home maintenance, workspace furniture, ergonomic equipment, or any other incidental costs, unless expressly provided for in the Agreement.
(d) Employees must take reasonable precautions to ensure their devices (e.g., computers, laptops, tablets, smart phones, etc.) are secure before connecting remotely to the City of Point Arena’s network and must close or secure all connections to City of Point Arena desktop or system resources (e.g., remote desktop, VPN connections, etc.) when not conducting work for the City of Point Arena. Employees must maintain adequate firewall and security protection on all such devices used to conduct City of Point Arena work from the Alternate Worksite.
(e) Teleworking employees shall exercise the same precautions to safeguard electronic and paper information, protect confidentiality, and adhere to the City of Point Arena’s records retention policies, especially as it pertains to the California Public Records Act (“CPRA”). Teleworking employees must safeguard all sensitive and confidential information (both on paper and in electronic form) relating to City of Point Arena work they access from the Alternate Worksite or transport from their City of Point Arena worksite to the Alternate Worksite. Teleworking employees must also take reasonable precautions to prevent third parties from accessing or handling sensitive and confidential information they access from the Alternate Worksite or transport from their City of Point Arena worksite to the Alternate Worksite. Teleworking employees must return all records, documents, and correspondence to the City of Point Arena at the termination of the Agreement or upon request by their supervisor or manager, City Manager or Human Resources.
1216.6.4 Miscellaneous
(a) Teleworking employees must notify their supervisor or manager promptly when unable to perform work assignments because of equipment failure or any other unforeseen circumstances.
(b) Teleworking employees must have access to an Alternate Worksite that is quiet and free of distractions and which has reliable and secure power, internet and/or wireless access. (c) Teleworking employees shall ensure that all official City of Point Arena documents are retained and maintained according to the normal operating procedures in the same manner as if working at a City of Point Arena worksite. (d) Teleworking employees must ensure dependent care will not interfere with work responsibilities.
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1218 Reimbursable Expenses for Certain Teleworking Employees 1218.1 Purpose
In conjunction with the Teleworking policy, the purpose of this policy is to provide the conditions and requirements for reimbursements for certain expenses incurred by Teleworking employees.

Commentary:

Controlling Authority: Labor Code section 2802 is the controlling authority regarding reimbursable expenses, providing in pertinent part: “An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer.”
As a result, employees who are directed by an agency to work from a location other than an agency worksite are likely entitled to reimbursement for expenses that are necessary to the employee performing their job duties remotely. (See Labor Code § 2802; In re Acknowledgement Cases (2013) 239 Cal.App.4th 1498.) Conversely, employees who voluntarily request to Telework from a location other than an agency worksite may not be entitled to reimbursement for expenses incurred during their voluntary performance of their job duties.

This policy may be used if the agency decides on providing reimbursements to those employees who voluntarily request to Telework. The agency should expect for employee organizations to subject the issue of reimbursements related to Teleworking to collective bargaining.
1218.2 Applicability of Policy to City of Point Arena Employees This policy covers and applies to all Teleworking employees. 1218.3 Teleworking Expenses Subject to Reimbursement
The City of Point Arena will reimburse covered Teleworking employees only for those expenses incurred which are necessary for the Teleworking employee to perform the job duties assigned to the Teleworking employee by the City of Point Arena from their home, place of residence, or location other than a City of Point Arena worksite as determined at the sole discretion of the City of Point Arena. Such expenses may include the following:
1) Computer, if the employee does not have such a device and the City of Point Arena does not have a such a device to lend to the employee;
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2) Computer monitor, if the employee does not have such a device and the City of Point Arena does not have such a device to lend to the employee; 3) Keyboard and mouse, if the employee does not have such devices and the City of Point Arena does not have such a device to lend to the employee; 4) Teleconferencing equipment (i.e., a video camera and microphone), if the employee does not have such a device and the City of Point Arena does not have such equipment to lend to the employee;
5) A desk and desk chair, if the employee does not have such furniture and the City of Point Arena does not have such furniture to lend to the employee; 6) Internet; and
7) Utilities
Commentary:

Non-Exhaustive List of Common Teleworking Expenses: The above enumerated expenses are commonly associated with teleworking. Public agencies may add other expenses, such as equipment, furniture or supplies that are not enumerated above if they elect to do so. Public agencies may modify the list of expenses enumerated above as a matter of policy. 1218.3.1 Process for Requesting Reimbursement for Teleworking Expenses Not Covered Above
An employee that believes that other equipment, furniture or supplies are necessary in order for the employee to perform the job duties assigned by the City of Point Arena from their home, place of residence, or location other than an City of Point Arena worksite may request that the City of Point Arena provide reimbursement for such expense(s). In order to request reimbursement for an expense not enumerated above, the employee may file with their Supervisor or Manager, a Teleworking Expense Reimbursement Request form. An employee organization may file with the City Manager a Teleworking Expense Reimbursement Request form. The manager or supervisor will discuss the request with the City Manager who will make a determination as to the expense at issue. The determination of the City Manager shall be final and not subject to appeal or grievance.
1218.4 Amount of Reimbursement for One-Time and Recurring Expenses One-time and recurring expenses of covered Teleworking employees may be reimbursed by the City of Point Arena at amounts to be determined at the sole discretion of the City Manager. 145
Commentary:

Reimbursement Amounts: As discussed in the commentary above, an agency that provides Teleworking to its employees on a voluntary basis may not be obligated to provide any reimbursement to Teleworking employees.

Where an agency mandates Teleworking, neither Labor Code section 2802 nor associated case law provides a required reimbursement amount, either as a dollar figure or as a percentage of the cost incurred by the employee.

Public agencies should expect that, as part of the negotiations concerning the adoption of a teleworking policy, which are mandatory, employee organizations with members affected by such policy will request specific reimbursement language and likely reimbursement amounts. 1218.6 Amount of Reimbursement for Covered Teleworking Employees Who Do Not Telework on a Full-Time Basis
For covered teleworking employees who are Teleworking on a part-time basis, the reimbursement amounts provided above will be provided on a pro rata basis to be determined at the sole discretion of the City Manager to reflect the amount of time that the employee is working from their home, place of residence, or location other than an City of Point Arena worksite.
1218.7 Requirement that Employee Request Prior Approval for Reimbursable Expenses
If a covered Teleworking employee expects to incur an expense that is subject to reimbursement as identified in this policy, that employee is required to file with their manager or supervisor, a Teleworking Expense Reimbursement Form. The manager or supervisor will discuss the request with the City Manager who will make a determination as to the expense at issue. The determination of the City Manager shall be final and not subject to appeal. 1220 Policy on Employee Use of Social Media
1220.1 Introduction and Purpose
The City of Point Arena has implemented this Policy in order establish guidelines for the appropriate use of social media by City of Point Arena employees. 1220.2 Covered Individuals and Scope of Policy
This policy covers City of Point Arena employees regardless of rank or title, interns, and 146
volunteers.
1220.3 Social Media Use Requirements
The City of Point Arena requires covered individuals to:
1) Observe and adhere to all City of Point Arena policies that may apply to individuals’ social media use, including but not limited to those policies that protect individuals’ confidentiality or privacy rights, anti-discrimination or harassment policies, and the antiworkplace violence policy. 2) Follow all applicable laws, including but not limited to those that protect individuals’ confidentiality or privacy and those that prohibit discrimination and harassment. 3) Refrain from using social media in any way that could adversely affect your job performance, the reputation of the City of Point Arena, or adversely affect members of the public served by the City of Point Arena.
4) Refrain from using social media during paid work hours, even if you are not actively posting to social media.
5) Refrain from commenting on any matter or issue on behalf of the City of Point Arena or representing that your posts or comments represent the City of Point Arena opinion on such subjects.
1220.4 Social Media Use Best Practices
The City of Point Arena encourages individuals to adhere to the following practices when using social media:
1) Ensure that your social media posts are accurate and truthful, and do not contribute to the spread of misinformation or disinformation.
2) Be respectful of others and refrain from attacking others or making unnecessarily negative posts.
3) Protect your privacy by not posting personal information. 4) Be mindful that what you share, even if later deleted, may not actually be deleted. 1220.5 Violations of the Social Media Policy
Individuals who violate this Policy may be subject to discipline, up to an including termination. 147

Point Arena City CouncilJanuary 20, 2026

Point Arena City Council
January 20, 2026