On-Duty Meal Periods Approved For Sole Workers

Q: Am I required to provide meal and rest periods when there is only one employee on duty?

A: Yes, California employers are required to provide meal and rest periods to their employees, but the law provides options when there is only one employee on duty.

In California, the general rule is that employees who work for more than five hours must be provided with a 30-minute duty free unpaid meal period, and employees who work more than 1.5 hours must be permitted to take a paid duty free rest period of at least 10 minutes per four hours of work, or major fraction thereof.  Employees must be free to leave the worksite during meal and rest periods.  Penalties may be assessed if an employer does not provide timely, duty free rest and meal periods.

If there is only one employee on duty, then the employee and employer may enter into a written on-duty meal period agreement when the nature of the work prevents an employee from being relieved of all duty during the meal period. In Videau v. Caritas Management Corp., the employee was a hotel front desk clerk who worked the graveyard or swing shift alone.  Mr. Videau alleged meal and rest period violations.  The Appellate Division of the San Francisco County Superior Court recently ruled that the on-duty meal period agreement in this case was valid because: (1) the employer provided the employee with an opportunity to take a 30-minute off-duty meal period every day; (2) the nature of the job precluded the employee from taking an uninterrupted, off-duty 30-minute meal break because the employee worked alone; (3) the employee voluntarily agreed to take an on-duty meal period and signed a valid on-duty meal period agreement; and (4) the on-duty agreement was in writing and expressly stated that the employee was free to revoke the agreement at any time.

The Court further ruled that the employer did not violate the rest period requirement because the employee was instructed by his supervisors to take two 15-minute rest periods during his 8 hour shift, and he was provided with signs to put up during his rest period, directing people to come back after the rest period. The Court rejected the employee’s argument that he was not allowed to leave the worksite during his rest periods, explaining that the reality of any rest period is that an employee generally can travel at most five minutes from the worksite before returning to make it back to work on time, and even though the time constraint may have the effect of keeping the employee on the worksite premises, such a constraint does not violate the rest period requirement.

An important fact in the Court’s ruling is that the employee was not “on call” or subject to employer control during his rest periods – he did not carry a pager, walkie-talkie, or radio, nor was he required to remain vigilant and to respond when needs arise. Further, if the rest period was interrupted for any reason, the employee was authorized and permitted to take his full 15-minute rest break after the interruption. The Court rejected the argument that the employer had a broad and intrusive degree of control during the rest breaks.

This decision is a rare win for California employers, and underscores the importance of compliance with meal and rest period requirements.


When COVID-19 Cases are Presumed to be a Worker’s Compensation Injury

Question: An employee told me that he tested positive for COVID-19.  Is he automatically entitled to workers’ compensation benefits?

Answer: Not automatically.  On September 17, 2020, the legislature passed SB 1159, which creates “disputable” presumptions that certain employees’ COVID-19-related illnesses are covered by workers’ compensation.  The presumptions differ based on the employee’s job position and only apply if the employee meets certain criteria.  The presumptions do not apply if an employee works remotely at his or her own home.

For firefighters, peace officers, emergency medical technicians, and certain healthcare workers, the presumption applies if the employee tests positive for COVID-19 within 14 days after the employee performed work at the employee’s place of employment at the employer’s direction.   If an employee of a health care facility does not provide direct patient care, the presumption only applies if the employee had contact in the past 14 days with a patient who tested positive for COVID-19.

For all other employees who work for employers with at least five employees, the presumption applies if:

  • the employee tests positive for COVID-19 within 14 days after the employee performed work at the employee’s place of employment at the employer’s direction; and
  • the positive test occurred during a period of an “outbreak” at the employee’s specific place of employment.

A COVID-19 “outbreak” occurs if, within 14 calendar days, one of the following occurs:

  • four employees test positive for COVID-19 (if the employer has 100 employees or fewer at a specific place of employment); or
  • 4% of the number of employees who reported to the specific place of employment test positive for COVID-19 (if the employer has more than 100 employees at a specific place of employment); or
  • a specific place of employment is ordered to close by a local public health department, the State Department of Public Health, or Cal/OSHA due to risk of infection with COVID-19.

Regardless of whether a presumption applies, employers must give an employee a DWC-1 form within one working day after it becomes aware that the employee tested positive for COVID-19.  The employer must then report the positive result to its claims administrator within three business days, by providing the following information:

  • An employee has tested positive. Do not disclose the employee’s identity unless the employee asserts the infection is work related;
  • The date the employee’s specimen was collected for testing;
  • The address of the employee’s place of employment during the 14-day period preceding the date of the employee’s positive test;
  • The highest number of employees who reported to work at the employee’s place of employment in the 45-day period preceding the last day the employee worked.

Any additional information the employer has about how the employee contracted COVID-19 should also be provided to the claims administrator.  If a worker meets the above criteria for the presumption to apply, the employer’s workers compensation insurance carrier will have up to 30 (healthcare employees) or 45 (all others) days to investigate and decide whether to accept or deny a claim.  If the claim is not rejected within 30 or 45 days, an injury or illness is presumed compensable, and an employer can then rebut that presumption only with evidence it discovered after the applicable period.


COVID-19 Pandemic Layoffs

Question: The COVID-19 pandemic has negatively impacted my business and I have to make hard decisions about staffing.  What do I need to know about furloughing or laying off employees?

Answer: Sadly, given the ongoing COVID-19 pandemic, many businesses are forced to make the difficult decision to let employees go.  Upon recognizing the need to make staffing adjustments, an employer should evaluate the job positions that are critical to business continuation, and which job positions to eliminate or merge.  Next, identify the employees that currently fill the jobs that will be eliminated or merged and decide who will be subject to layoff.  It is important to use objective criteria in making these decisions in a non-discriminatory manner.  Factors such as seniority, job performance, and flexibility of skill set may help guide these decisions.  Once the employer has decided who will be laid off, it is a good idea to have the list reviewed by counsel or a trusted executive or colleague.  If an employer is closing a plant or laying off a large number of employees, the employer should determine if the timing and notice requirements of the Worker Adjustment and Retraining Notification (“WARN”) Act apply.

Sometimes employers “furlough” employees with the expectation the employees will return to their jobs when economic conditions improve.  However, the Division of Labor Standards Enforcement takes the position that a furlough that extends beyond the pay period when the furlough begins, or a furlough that exceeds 10 days, is treated like a termination of employment for purposes of providing furloughed employees with their final pay.  If staffing reductions are indefinite, employers should classify the action as a layoff and follow the procedures described below.

After making the layoff decision, an employer should meet in person with the employee, if possible.  If COVID-19 related stay-at-home orders make an in-person meeting impossible or inadvisable, the next best option is to schedule a one-on-one video conference with the employee.  Conduct the videoconference in a professional setting free of distractions.  Prepare a checklist to review with the employee during the meeting, and be prepared to answer questions the employee may have about unemployment benefits, job references, health insurance continuation, 401(k) plans, and other benefits.  Discuss the logistics of returning employer keys and other property.  Be honest about the economic reasons for the layoffs, let the employee know that you appreciate the employee’s work, and that they are eligible for rehire.  Confirm this information in writing since the employee may be upset and have difficulty retaining the information.

Have the employee’s final pay ready to pay the employee on the layoff date, including all wages owed up to the layoff date plus accrued but unused vacation and PTO.  Failure to timely pay final wages may result in owing the employee a waiting time penalty equivalent to the employee's daily rate of pay for each day the wages remain unpaid, up to a maximum of thirty days.

Give the employee the “For Your Benefit: California’s Programs for the Unemployed” pamphlet and a Notice of Change in Relationship, available via the California Employment Development Department’s website.  If the employee receives health insurance, and the employer has 20 or more employees, the employer must also provide the Health Insurance Premium Payment Notice to Terminating Employees, available on the California Health and Human Services Agency’s website.

Advance planning, respect, and empathy can help make these difficult layoffs a little less painful.


Mandatory COVID-19 Vaccinations in the Workplace

Question: Can I require my employees to get the new COVID-19 vaccination when it becomes available?

Answer:  The Equal Employment Opportunity Commission (EEOC) recently issued much-anticipated guidance on the COVID-19 vaccination in the workplace confirming that generally, employers may require employees to get the COVID-19 vaccination as long as the requirement is job-related and consistent with business necessity.  In formulating any vaccination policy, an employer must keep in mind the protections afforded to employees under federal and state law.

In deciding whether to require employees to get COVID-19 vaccinations, employers should assess the potential direct threat to the workplace if employees are not vaccinated, considering the risk level of their specific workplace environment and industry. For instance, if an employer’s customer base is typically high-risk, or if the workplace has already had work-related COVID-19 exposures during the pandemic, then mandating the vaccination for employees may be a prudent way to provide a safe and healthy work environment.

If an employer decides to require the vaccination and an employee refuses, the employer must conduct an individualized assessment to determine if the employee is refusing for a protected reason under the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act, or the California Fair Employment and Housing Act (“FEHA”).

For refusals based on a disability, the employer must determine whether an unvaccinated individual would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  The employer should review the following four factors:

  1. The duration of the risk;
  2. The nature and severity of the potential harm;
  3. The likelihood that the potential harm will occur; and
  4. The imminence of the potential harm.

If the employer finds that a direct threat exists, it cannot automatically discharge the employee.  The employer must determine whether a reasonable accommodation is available that would not impose an undue hardship for the employer, such as having the employee work remotely or placing the employee on a leave of absence.

For refusals based on sincerely held religious beliefs, employers must also reasonably accommodate employees unless doing so would pose an undue hardship. Because the definition of religion is broad and protects beliefs with which the employer may be unfamiliar, the EEOC advises employers to assume an employee’s stated religious belief is sincere.

According to the CDC, certain questions should be asked before administering the vaccine to ensure that there is no medical reason that would prevent the employee from receiving the vaccination.  If the employer is administering the vaccination, pre-screening questions it poses may elicit information about an employee’s disability, implicating the ADA’s and FEHA’s provisions on disability-related inquiries.  If the questionnaire asks for genetic information such as the employee’s family medical history, that implicates protections under the Genetic Information Nondiscrimination Act.  Employers should ensure that inquiries are job-related and consistent with business necessity, and should instruct employees not to provide any genetic or disability related information in answering the pre-screening questions.  Employers must also maintain the confidentiality of employees’ responses.

As new information about vaccine efficacy and longevity, distribution, and vaccination plans emerge, it is likely the EEOC and other state or federal agencies will issue additional guidance, or revise guidance to reflect the most current information.  For more information, employers can review the EEOC guidelines regarding the COVID-19 vaccine.


New Cal/OSHA Regulations Require Employers to Adopt and Implement a COVID-19 Prevention Program

Question: My business has an Injury and Illness Prevention Plan (“IIPP”) to comply with the Cal/OSHA workplace safety rules. A friend told me that I need to make a new IIPP because of COVID-19. Is this true?

Answer: Yes. On November 19, 2020, Cal/OSHA approved a comprehensive and complex set of “COVID-19 Emergency Temporary Standards” to address issues related to COVID-19 in the workplace. The emergency standards became effective on November 30, 2020, with a current expiration date of October 2, 2021. Though some businesses in the healthcare industry are exempt and covered under a separate Cal OSHA Aerosol Transmissible Diseases standard, nearly all other California employers are now subject to the new emergency standards.

To comply with the emergency standards, an employer must develop a written COVID-19 Prevention Program, which must implement the following:

  • Communication to employees about the employer’s COVID-19 prevention procedures
  • Identification, evaluation, and correction of COVID-19 hazards
  • Physical distancing of at least six feet unless it is not possible
  • Use of face coverings
  • Use of engineering controls, administrative controls, and personal protective equipment as required to reduce transmission risk
  • Procedures to investigate and respond to COVID-19 cases in the workplace
  • Provide COVID-19 training to employees
  • Provide testing to employees who are exposed to a COVID-19 case, and implement regular workplace testing for employees in the event of multiple infections or a major outbreak
  • Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk
  • Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and the local health department, as required

The COVID-19 Prevention Program, which contains requirements that are similar to the Cal/OSHA IIPP, may be integrated into the employer’s normal IIPP or maintained in a separate document.

The emergency standards contain a new employer-sponsored paid sick leave mandate requiring an employer to provide an employee with paid leave if the employee is sent home because the employee was exposed to COVID-19 at work. An employer can satisfy this paid leave requirement by providing the employee with existing paid sick leave benefits such as Families First Coronavirus Response Act and Healthy Workplaces, Healthy Families Act sick leave, or other existing paid time off provided by the employer. The employer may also consider benefit payments from public sources (e.g., unemployment insurance and workers’ compensation benefits). However, if these sources are insufficient to maintain the employee’s full compensation during the quarantine period, the employer must make up the difference with additional paid time off.

Also, employers must immediately exclude from the workplace COVID-19-positive employees and employees who were exposed to COVID-19. An employee was “exposed” to COVID-19 if the employee was within 6 feet of a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s high-risk exposure period. The high-risk exposure period for a COVID-19 case begins 48 hours (2 days) before the person developed COVID-19 symptoms, or if the person never developed symptoms, then 48 hours before the person took the first COVID-19 test that came back positive.

The emergency standards contain detailed rules for determining when such employees may return to work and prohibit employers from requiring an employee to obtain a negative COVID-19 test result before returning to work.

Though it is difficult to keep up with all of the new COVID-19 workplace laws, implementing a written COVID-19 Prevention Program is a crucial first step to mitigating COVID-19 risks at the workplace.


New Law Roundup

Question:  I run a relatively large business in California, and I do my best to keep up on California’s ever-changing legal landscape (I read all of your articles).  Are there any other new compliance obligations that I should be aware of going into 2021?

Answer:  The California Legislature once again passed an extensive list of new employment laws.  We have covered a number of the major laws in prior articles; however, there are a few other new laws that have received less attention but still require action by California employers for the upcoming year, including the two listed below.

Assembly Bill 979

In 2018, California enacted Senate Bill (“SB”) 826, which required publicly held domestic or foreign corporations with their principal executive offices in California to have at least one female on their board of directors by the end of 2019, with that number potentially increasing by the end of 2021 depending on the size of the board of directors. Assembly Bill (“AB”) 979 enacts very similar provisions requiring these corporations to have directors from “underrepresented communities.”  A “director from an underrepresented community” is defined as an individual who is “Black, African-American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian or Alaska Native or who self-identifies as gay, lesbian, bisexual, or transgender.”

Pursuant to AB 979, by no later than the close of the 2021 calendar year, these corporations must have at least one director from an underrepresented community on their board of directors. AB 979 sets additional targets for such board membership by the close of the 2022 calendar year, depending on total board size.  Notably, AB 979 imposes significant fines for non-compliance ranging from $100,000 to $300,000.  AB 979 also requires that the Secretary of State post annual reports on its website listing, among other information, the number of corporations that are in compliance with the new requirements, as well as information regarding those corporations that either moved their headquarters into or out of California.

Assembly Bill 1963

California’s Child Abuse and Neglect Reporting Act requires “mandated reporters” to report to specified agencies (e.g., police or county welfare) whenever they, in their professional capacity or within the scope of their employment, observe a child they know or reasonably suspect has been the victim of child abuse or neglect. If a mandated reporter fails to report a known or reasonably suspected case of child abuse or neglect, he or she faces misdemeanor liability, including statutory penalties and potential jail time.

AB 1963 adds to a lengthy list of mandated reporters “human resource employees of a business with 5 or more employees that employs minors.” AB 1963 defines a “human resource employee” as the employee or employees designated by the employer to accept any complaints of misconduct as required by the California Fair Employment and Housing Act.  AB 1963 also adds to the list of mandated reporters, for purposes of reporting sexual abuse, “an adult whose duties require direct contact with and supervision of minors in the performance of the minors’ duties in the workplace of a business with 5 or more employees.”  AB 1963 further requires businesses to provide their employees who are mandated reporters with training. This training must address child abuse and neglect identification and child abuse and neglect reporting.

Businesses should start planning ahead for these requirements to ensure that they are not subject to penalties or liability.


Mandatory Sexual Harassment Prevention Training Must Be Completed By January 1, 2021

Question:  I remember reading about harassment prevention training requirements for small businesses, but the deadlines for completing the training kept changing.  Is there a deadline?

Answer:  Although originally all California employers who employ five or more employees had a January 1, 2020 deadline to provide effective interactive training regarding sexual harassment, Governor Newsom signed legislation extending the deadline to January 1, 2021.  Employers who have not yet completed the requisite trainings for their employees must do so by December 31, 2020 to comply with the January 1, 2021 deadline.  Employers who provided legally compliant harassment prevention training and education in 2019 do not have to provide it again until 2021.

As a reminder, Governor Brown signed Senate Bill 1343 in 2018 requiring businesses with five or more employees to provide interactive training in the prevention of sexual harassment to all employees. The training must address sexual harassment, including providing practical examples of harassment based on gender identity, gender expression, and sexual orientation.  It must also address the prevention of discrimination, retaliation, and abusive conduct.  The law requires employers to provide one hour of this interactive training to nonsupervisory employees and two hours of this interactive training to supervisors and managers.  The training must be provided once every two years. However, new hires or newly promoted supervisors must receive the training within 6 months of hire or promotion. Additionally, beginning January 1, 2021, employees who are seasonal, temporary, or hired to work for less than six months must receive the training within 30 calendar days after their hire date or within 100 hours worked, whichever occurs first.  Employers are not required to train employees who are employed for fewer than 30 calendar days and work for fewer than 100 hours.

The training may be completed by employees individually or as part of a group presentation, and it may be completed in shorter segments, as long as the applicable hourly total requirement is met.  To satisfy the “effective interactive training” requirement, the training may include any of the following:

  • Classroom training that is in-person whose content is created by a trainer and provided to employees by a trainer, in a setting removed from the employees’ daily duties.
  • E-learning that is individualized, interactive, computer-based training created by a trainer and an instructional designer that includes a link or directions on how to contact a trainer who shall be available to answer questions and to provide guidance within two business days after the question is asked.
  • Webinar training that is an internet-based seminar whose content is created and taught by a trainer and transmitted over the internet or intranet in real time.
  • The use of audio, video or computer technology in conjunction with classroom, webinar and/or e-learning training.

The Department of Fair Employment and Housing (“DFEH”) provides free online training courses on preventing sexual harassment and abusive conduct in the workplace that satisfy California’s training requirements.  The training is available in English, Spanish, Chinese, Korean, Tagalog, and Vietnamese.  The DFEH’s online training may be accessed at https://www.dfeh.ca.gov/shpt/.  Employers must retain a record of all employees’ training for a minimum of two years.

The January 1, 2021 deadline is fast approaching, so now is the time to ensure your employees receive the required training before December 31, 2020.


Employers With 5 or More Employees Will Be Required to Provide California Family Rights Act Leave

Question: I heard there is a new leave law that applies to small employers in California.  What is it?

Answer: The existing California Family Rights Act (“CFRA”) family and medical leave law allows eligible employees to take up to 12 weeks of unpaid leave in any 12-month period for personal illness, illness of a family member, or the birth, foster placement, or adoption of a child.  Recently enacted Senate Bill 1383 (“SB 1383”) expands the provisions of the CFRA and beginning January 1, 2021, the CFRA will require most employers with 5 or more employees to provide eligible employees with unpaid leave.

Prior to January 1, 2021, the CFRA only applied to businesses having 50 or more employees within a 75-mile radius.  The CFRA limited an employee’s ability to request leave in connection with a family member’s serious health condition to instances involving a child, parent, or spouse.  Further, the CFRA only provided a cumulative 12 weeks for both parents to take leave to bond with a child.

Starting January 1, 2021, the expanded CFRA will require all employers with five or more employees to provide family care and medical leave to all eligible employees. Eligible employees must have worked for the employer for more than 12 months, and must have worked a minimum of 1,250 hours during the 12 months prior to the leave.

The expanded CFRA does the following:

  • Allows eligible employees to take up to 12 weeks of unpaid CFRA leave to care for the employee’s parent, child, spouse, grandparent, grandchild, sibling, and registered domestic partner who has a serious health condition.
  • Requires that employers, upon granting the leave request,  guarantee the employee the same or a comparable position upon the termination of the leave.
  • Allows employees to take unpaid leave because of a “qualifying exigency” related to the covered active duty or call to covered active duty for an employee’s spouse, registered domestic partner, child, or parent in the military.
  • Requires employers to maintain existing health care coverage during CFRA leave.
  • Expands the definition of “child” to include all children, regardless of age or dependency, and children of a domestic partner.
  • Requires an employer who employs both parents of a child to allow each employee up to 12 weeks of unpaid leave during the first year of the child’s birth, adoption, or foster placement.

In 2018 California enacted the New Parent Leave Act (“NPLA”), requiring employers with 20-49 employees to provide eligible employees with leave to bond with a new child.  SB 1383 will repeal the NPLA on January 1, 2021 because the expanded CFRA provides new parent leave.

SB 1383 creates challenges for employers with 50 or more employees that are covered under both the CFRA and the federal Family and Medical Leave Act (“FMLA”).  Because SB 1383 expands the definition of covered family members under CFRA, employees who are covered by the CFRA and the FMLA may be eligible for up to 24 weeks of leave in a 12-month period.  For example, eligible employees may take 12 weeks of CFRA leave to care for their grandparent’s serious health condition, plus another 12 weeks of FMLA leave due to their own serious health condition.

Employers should review the expanded CFRA, revise employee handbooks, create new leave forms and leave tracking protocols, and begin preparing procedures for providing employees leave under the CFRA.


Employee Flu Vaccinations

Question: Because of increased concerns of employee health and safety due to the pandemic, can I require my employees to get the flu vaccine?

Answer:  Employers in industries like healthcare and education must follow specific requirements relating to flu vaccine mandates.  All other employers are obligated to provide a safe and healthy workplace.  However, if an employer mandates flu vaccines for all employees, it must be prepared to address employees who refuse to get the vaccine.

The Centers for Disease Control and Prevention (CDC) recently published its findings and recommendations on immunizations for the 2020-2021 flu season stating that getting the flu vaccine this fall is more important than ever to protect everyone from the flu and reduce the strain on the healthcare system due to COVID-19. As such, it is understandable that an employer would consider mandating flu vaccines for all of its employees.  However, employers must balance their obligations to keep the workplace safe with their obligations to prevent discrimination under federal and California law.

Under Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (FEHA), an employer must reasonably accommodate an employee with a disability if the person is otherwise qualified to safely perform all of the essential functions of the position, and the accommodation would not impose an undue hardship on the employer.  Likewise, an employer must reasonably accommodate sincerely held religious practices and beliefs that may conflict with workplace rules, as long as the religious practices and beliefs do not impose an undue hardship on the employer.

If an employer has a policy mandating the flu vaccine, and an employee refuses to get the vaccine because of a disability that would render the flu vaccine unsafe, or because of a sincerely held religious belief that prohibits vaccines, the employer cannot just terminate the employee for failing to comply with its policy. The employer must engage in the interactive process with the employee to try to find a reasonable accommodation that would allow the employee to continue to work without getting the vaccine.  Employers can ask employees for supporting documentation, like a doctor’s note, or information related to their refusal to get the vaccine.

Possible accommodations include imposing alternative requirements on the employee such as mask wearing, having the employee work remotely if feasible for the employee’s job duties, or alternate schedules or assignments for the employee to limit the risk and spread of infection.

As an alternative to mandating flu vaccines, employers may instead encourage employees to get the flu vaccine by providing information on vaccination benefits, offering scheduling flexibility to allow employees time to receive the vaccine, offering to pay employees for the time spent and cost of getting the vaccine, or hosting an on-site vaccination clinic.  Employers should implement other controls to protect workers and reduce the transmission of the seasonal flu virus in the workplace, including encouraging sick workers to stay home, promoting hand hygiene and cough etiquette, and keeping the workplace clean.

If an employer is asking employees for any medical information like proof of immunization or a doctor’s note regarding flu vaccine restrictions, it must ensure the privacy of this information keeping it in a secure location, separate from the employee’s personnel file, accessible only to designated staff members.

For more information on the CDC and EEOC recommendations, visit:


Recent Changes to COVID-19 Paid Leave Programs

The purpose of this article is to detail recent changes to COVID-19 laws that may apply to your business.  If your business is in the healthcare industry, if you employ emergency responders, or if you have 500 or more employees anywhere in the United States, these new laws apply to your business.

Introduction

Two significant changes expand existing COVID-19 paid leave laws and create a new California COVID-19 related leave program. Both laws may affect the types of paid leave programs available to employees within your business, affecting your obligation to provide FFCRA leave.

First, the Secretary of Labor published revisions and clarifications to the emergency paid sick leave and expanded family medical leave established under the Families First Coronavirus Response Act (FFCRA), set to expire December 31, 2020. These revisions are effective September 16, 2020 and alter the definition of “health care provider,” making more employees eligible for FFCRA leave. Accordingly, employees within your health care business who were previously excluded from FFCRA leave may now qualify. The FFCRA applies only to employers with fewer than 500 employees.

Second, on September 9, 2020, Governor Newsom signed Assembly Bill 1867 (“AB 1867”), which established COVID-19 Supplemental Paid Sick Leave for employees who are employed by private businesses of 500 or more employees or are employed by certain types of health care providers. This bill is effective on September 19, 2020 and expires December 31, 2020.

These two changes are described more fully below.

New Leave Obligations – Employers in the Health Care Industry with Fewer than 500 Employees

After the State of New York successfully challenged portions of the FFCRA, the Department of Labor reexamined provisions within the FFCRA and has now altered the definition of “health care provider.” This expanded definition makes more employees eligible for FFCRA leave, and requires an examination of the employee’s job duties to determine if they are eligible for FFCRA leave.

Originally, the FFCRA focused on the employer’s industry or business, stating that any employee employed by a “health care provider” is excluded from eligibility for FFCRA leave. Finding that this definition excluded too many employees—contrary to the law’s intended purpose—the DOL revisions require analysis of skills, role, duties, or capabilities of the employee. Specifically, the DOL revised the definition of “health care provider” to mean employees who are employed to provide diagnostic services, preventative services, treatment services, or services that are so integrated and necessary that their absence would negatively affect patient care. Employees whose duties fall into one of those categories may be excluded from FFCRA leave. The DOL provided the following examples of the types of duties in each category that would cause an employee to be excluded from FFCRA eligibility:

  • Diagnostic Services: Taking or processing samples; performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.
  • Preventative services: Screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.
  • Treatment Services: Performing surgery or other invasive or physical intervention, administering or providing prescribed medication, or providing or assisting in breathing treatments.
  • Services that are integrated with and necessary to diagnostic, preventative, or treatment services that, if not provided, would adversely impact patient care: Bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, transporting patients and samples.

The DOL also provided a non-exhaustive list of employees that fall under the definition of “health care provider,” meaning their duties fall within the above categories and they are excluded from FFCRA eligibility:

  • Nurses, nurse assistants, medical technicians, and any other persons who directly provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.
  • Employees providing diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care under the supervision, order, or direction of, or providing direct assistance to nurses, nurse assistants, medical technicians, and other persons who directly provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.
  • Employees who may not directly interact with patients and/or who might not report to another health care provider or directly assist another health care provider, but nonetheless provide services that are integrated with and necessary components to the provision of patient care, such as a lab technician.

With this new definition, there are many employees of health care providers who were previously excluded from FFCRA leave eligibility who will now be eligible if they meet the other eligibility requirements. The DOL’s non-exhaustive list of employees whose job duties do not fall within the above definition of health care provider and are thus eligible for FFCRA leave include:

  • Information technology (IT) professionals;
  • Building maintenance staff;
  • Human Resources personnel;
  • Cooks;
  • Food service workers;
  • Records managers;
  • Consultants; and
  • Billers

Employers in the health care industry who have fewer than 500 employees will have to reevaluate the eligibility criteria they apply when an employee requests FFCRA leave. For more information visit https://www.dol.gov/agencies/whd/pandemic or the DOL’s FAQ page https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

New Leave Obligations Applicable to Employers with 500 or More Employees in the United States, And Employers of Health Care Providers and Emergency Responders Regardless of the Number of Employees Employed by the Business

AB 1867 establishes a COVID-19 Supplemental Paid Sick Leave (SPSL) program that applies to:

  1. Employers with 500 or more employees in the United States; and
  2. Employers of any size who employ health care providers or emergency responders.

Employees are eligible for SPSL if they leave their place of residence to perform work, and are either employed by an employer that has 500 or more employees in the United States, or are employed as a health care provider (using the above detailed definition) or emergency responders, and employer has excluded them from emergency paid sick leave under the FFCRA.

When the above requirements are met, employers shall provide SPSL to an employee if the employee is:

  • Subject to a federal, state, or local quarantine or isolation order related to COVID-19; OR
  • Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; OR
  • Prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Employers must provide eligible employees with 80 hours of SPSL if the employee is either considered as full time, or has worked—or was scheduled to work—on average of at least 40 hours per week in the two weeks before the date that the employee took SPSL.

An eligible employee who works fewer than 40 hours per week, SPSL is to be provided as follows:

  • For employees who have a normal weekly schedule, employers shall provide the same number of hours that the employee is normally scheduled to work over two weeks.
  • For employees that have variable hours, employers shall provide 14 times the average number of hours worked each day in the last six months.
  • For employees that have worked for less than six months, but more than 14 days, this calculation shall be made over the entire period the employee has worked at the employer’s business.
  • For employees with variable hours, but who have worked with the employer for 14 days or less, employers shall provide the employee with the same number of hours worked.

Once an eligible employee determines how many SPSL hours to use, the employer shall make SPSL available to use. Employees may make SPSL requests either orally or in writing. SPSL is provided to employees in addition to any other paid sick leave they receive pursuant to existing law and employers may not require an employee to use other available paid time off or vacation time before or in lieu of SPSL.

The rate of compensation for SPSL is the highest of the employee’s regular rate of pay during the last pay period, or the state or local applicable minimum wage, up to daily and aggregate total maximum payments.

Employers are required to display a poster regarding SPSL, which may be disseminated electronically. We have attached a copy of the updated poster.

Conclusion

If you have any questions about your obligations as an employer of health care providers, emergency responders, or if you have 500 or more employees anywhere in the United States, and have questions about how these new laws apply to your business, do not hesitate to any of the attorneys in our employment practice group.  We will continue to monitor changes in the law and provide updates that affect your obligations as an employer.


California COVID-19 Supplemental Paid Sick Leave

On September 9, 2020 Governor Newsom signed AB 1867 granting COVID-19 paid sick leave to many employees who were excluded from eligibility under the Federal Families First Coronavirus Response Act.  Covered employers must begin providing this new supplemental paid sick leave no later than September 19, 2020, and post a required notice.

Covered Employers

The California Supplemental Paid Sick Leave Act expands leave coverage to:

(a) all employers with 500 or more employees in the United States (e.g., those not covered by the Families First Coronavirus Response Act (FFCRA)), and

(b) health care providers and emergency responders whose employers elected to exclude them from FFCRA paid sick leave eligibility.

Eligible Employees

Employees are eligible to take the new COVID-19 supplemental paid sick leave if the worker meets one or more of the following criteria:

  1. The employee is employed by a covered employer;
  2. The employee is employed as a health care provider or emergency responder and the employer has elected to exclude the employee from FFCRA sick leave eligibility. The definition of “health care provider” has been narrowed, and includes only employees providing health care services, meaning the employee is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care. The new definition of health care provider states that employees who do not provide health care services are not health care providers even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.

An employee is not entitled to supplemental paid sick leave if the employee is able to work from home.

In addition, an eligible employee does not include:

  • An employee who works in the following industries:
    • Canning, Freezing, and Preserving;
    • Handling Products After Harvest;
    • Preparing Agricultural Products for Market on the Farm; or
    • Employed in an agricultural occupation
  • An employee who works for a food facility, defined as an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level.
  • An employee who delivers food from a food facility.

Although these employees are excluded from the COVID-19 Supplemental Sick Leave, they may be covered by Executive Order N-51-20, which provides paid sick leave to food sector employees.  See https://www.dir.ca.gov/dlse/COVID-19-Food-Sector-Workers-poster.pdf

Reasons for Taking Supplemental Sick Leave

An eligible employee is entitled for COVID-19 supplemental paid sick leave if the employee is unable to work because the employee is:

  • Subject to a federal, state or local quarantine or isolation order related to COVID-19; or
  • Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
  • Prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Amount of Leave

Full-time employees are eligible for 80 hours of COVID-19 supplemental paid sick leave.  “Full-time” means the employee:

  • Is considered “full-time” by the employer; or
  • Is scheduled to work 40 hours per week; or
  • Worked, on average at least 40 hours per week during two weeks prior to taking leave.

Part-time employees are eligible for the number of sick leave hours equal to the number of hours the employee is normally scheduled to work in two weeks. If an employee works a varying schedule, the employee is entitled to sick leave hours equal to 14 times the average number of hours the employee worked each day in the six months prior to the leave, or over the total time of employment if less than six months.

The supplemental leave must be provided in addition to already existing State paid sick leave under the Healthy Workplaces, Healthy Families Act of 2014.  However, any California employer who provided COVID-19 related sick leave due to a local ordinance requiring COVID-related paid sick leave ordinance may count the local ordinance-provided paid sick leave toward this new California supplemental paid sick leave.  For example, if an employer provides a full-time worker 40 hours of COVID-19-related supplemental paid sick leave as required by a local ordinance, those 40 hours would count toward the employer’s obligations under this new California supplemental paid sick leave law as long as the leave provided by the employer is for a reason listed under this new California law and is at least at the same rate of pay as this new California law requires.  Employers may not require employees to use other paid or unpaid leaves before the employee uses this new COVID-19 supplemental paid sick leave.

An employer may not require the employee to use other paid or unpaid leave, sick leave, vacation, PTO before using COVID-19 supplemental paid sick leave.

Pay Rate

Eligible employees are paid COVID-19 supplemental paid sick leave at the employee’s regular rate of pay as if the employee has been scheduled to work the hours the employee took off as COVID-19 supplemental paid sick leave, up to a maximum of $511 per day and $5,110 in total.

Medical Certification

California employers may not require a doctor’s note or other certification regarding an employee’s use of this new supplemental paid sick leave, nor may the employer deny the employee leave based solely on a lack of certification.  However, the Labor Commissioner has stated that it may be reasonable in certain circumstances to ask for documentation before paying the sick leave when the employer has other information indicating that the worker is not requesting COVID-19 Supplemental Paid Sick leave for a valid purpose.

Notice Requirements

The law requires employers to post and to provide the following notice to all employees: https://www.dir.ca.gov/dlse/COVID-19-Non-Food-Sector-Employees-poster.pdf

For any remote workers, the notice may be emailed to them.

Sunset Provision

Covered employers must begin providing supplemental paid sick leave no later than September 19, 2020.  The supplemental sick leave provision will expire on December 31, 2020, or upon the expiration of any federal extension of the federal emergency paid sick leave provisions under the FFCRA, whichever is later.

For more information, visit the FAQs at:  https://www.dir.ca.gov/dlse/FAQ-for-PSL.html


Fenton & Keller COVID-19 FAQs

There are some important changes to laws relating to COVID-19 as the Department of Labor and California Legislature respond to compliance with the Families First Coronavirus Response Act (FFCRA). We remain available to assist you with any questions you may have. The well-being of our employees, clients, business partners and community remains our constant priority. We value our relationship with you and are committed to staying connected and helping you through this extraordinary time.

May an employee refuse to come to work due to a fear of becoming infected with COVID-19?

Potentially. Employees may be protected from retaliation under the Occupational Safety and Health Act (“OSHA”) in certain circumstances when they refuse to perform work as directed.  Specifically, an employee may refuse an assignment that involves “a risk of death or serious physical harm” if all of the following conditions apply: (1) the employee has “asked the employer to eliminate the danger and the employer failed to do so”; (2) the employee “refused to work in ‘good faith’” (a genuine belief that “an imminent danger exists”); (3) “[a] reasonable person would agree that there is real danger of death or serious injury”; and (4) “[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.”  While each situation is different, and a generalized fear of contracting COVID-19 is not likely to justify a work refusal in most cases, employers should conduct a thorough review of the facts before any disciplinary action is taken against an employee who refuses to perform his or her job for fear of exposure to COVID-19.

Do I have to provide my employees with paid leave if I require them to self-quarantine after traveling to a high-risk area?

            It depends.  Employees in California are entitled to paid sick leave under the Healthy Workplaces, Healthy Families Act (“HWHF”).  In addition, under the Families First Coronavirus Response Act (“FFCRA”), employees are entitled to up to two weeks of paid sick leave if they are subject to a federal, state, or local quarantine or isolation order.  The California Labor Commissioner has taken the position that employees may use accrued HWHF sick leave to self-quarantine.  Unlike California paid sick leave, an employee would not be entitled to the FFCRA paid sick leave unless the employee’s quarantine is required by a federal, state, or local order or by the advice of a healthcare provider.  Thus, an employee in this situation would be able to use any accrued paid California HWHF sick leave but not paid FFCRA sick leave.  Once the employee exhausts his or her HWHF sick leave, the employer may allow the employee to use his or her other accrued PTO (e.g., vacation) while on leave.

How much information can I request from an employee who calls in sick with no explanation?

According to the Equal Employment Opportunity Commission (“EEOC”) and the California Department of Fair Employment and Housing (“DFEH”), employers may ask such employees if they are experiencing symptoms of a virus during a pandemic.  For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, loss of taste or smell, or sore throat.  Employers must maintain all information about employee illness as a confidential medical record in files that are separate from the employee’s personnel file.

May I take all employees’ temperatures before allowing them to enter the workplace?

            Yes.  Generally, measuring an employee’s body temperature is a medical examination that may only be performed in limited circumstances.  During the COVID-19 pandemic, the EEOC and the DFEH agree that employers may measure an employee’s body temperature for the limited purpose of evaluating the risk that the employee’s presence poses to others in the workplace.  Employers that maintain records regarding employee temperatures must keep all information confidential and separate from employee personnel files.

Can an employer ask an employee physically coming into the workplace if they have family members with COVID-19 or associated symptoms?

            No.  The Genetic Information Nondiscrimination Act of 2008 (GINA) forbids employers asking medical questions about family members of employees. The EEOC recommends asking more general questions such as “have you had contact with any people with COVID-19 associated symptoms?”

Can an employer bar an employee from entering the workplace if the employee refuses to answer questions about COVID-19 symptoms?

            Yes.  The EEOC and the DFEH both advise employers to follow CDC guidelines and send any employees with COVID-19 symptoms home.  California’s re-opening guidance requires employers to adopt screening measures for all employees entering the workplace.  Many employers have implemented questionnaires with questions that ask employees if they had or have COVID-19 symptoms.  Questions such as these help employers determine whether the employee would pose a threat to the health and safety of other employees.  Employees that refuse to answer such questions may be sent home.

What information may an employer reveal if an employee is quarantined, tests positive for COVID-19, or has come in contact with someone who has COVID-19?

            Employers should not identify any such employees by name in the workplace to ensure compliance with privacy laws.  If an employee tests positive for or is suspected to have COVID-19, the employer should contact local health officials and follow the most current local, state, or federal public health recommendations.  Directions from public health authorities may include closing the worksite, deep cleaning, and permitting or requiring telework.

Employers may notify affected employees (those who came in close contact with the infected employee) in a way that does not reveal the personal health information or identity of the infected employee.  For example, the employer could speak with employees or send an email or other written communication stating: “[Employer] has learned that an employee at [office location] tested positive for COVID-19.  The employee received positive test results on [date].  This email is to notify you that you have potentially been exposed to COVID-19 and you should contact your health care provider and local public health department for guidance and any possible actions to take based on individual circumstances.”

Employers may not confirm the health status of employees or communicate about employees’ health.

Can I require employees to submit to a COVID-19 test before permitting employees to enter the workplace?

            The Centers for Disease Control’s (“CDC”) current guidance states that antibody tests should not be used to make decisions about returning employees to work because they are less accurate and reliable than virus testing.  Based on this guidance, the EEOC and the DFEH have taken the position that employers may require employees to submit to “viral” testing but not “antibody” testing before permitting employees to enter the workplace.  Employers should be aware that viral tests can have false-negative results and that a negative viral test does not mean that an employee will not acquire COVID-19 in the future.

If an employee has a medical condition that increases his or her risk for severe illness from COVID-19, is the employee entitled to a reasonable accommodation?

                Maybe.  According to the CDC, people of any age with the following underlying medical conditions are at increased risk for severe illness from COVID-19: cancer; chronic kidney disease; COPD; immunosuppressed state from solid organ transplant; obesity; serious heart conditions; sickle cell disease; and Type-2 diabetes.  Individuals with the following conditions may be at increased risk for severe illness from COVID-19: moderate to severe asthma; cerebrovascular disease; cystic fibrosis; hypertension or high blood pressure; immunocompromised state from blood or bone marrow transplant; immune deficiencies; HIV; use of corticosteroids, or use of other immune weakening medicines; neurologic conditions such as dementia; liver disease; pregnancy; pulmonary fibrosis; smoking; thalassemia (a blood disorder); and Type-1 diabetes.

If the underlying medical condition qualifies as a disability, then the employer must reasonably accommodate the employee, absent an undue hardship.  In California, disabilities are broadly defined as conditions that limit a major life activity, including physical and mental disabilities, as well as medical conditions. California definitions and protections can be broader than protections under federal law. See https://www.dfeh.ca.gov/peoplewithdisabilities/. If the underlying medical condition does not qualify as a disability, employers are not required to reasonably accommodate the employee, though the EEOC and the DFEH suggest that employers attempt to accommodate workers who are or may be at increased risk of severe illness from COVID-19 as a general strategy to keep employees safe and healthy.

Is an employee entitled to an accommodation in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?

Yes, in California.  Federal law does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom he or she is associated.  For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.

However, under California  law, it is unlawful to discriminate against an employee because of a perception that the employee is associated with a person, such as a family member, who has a disability.  Although California courts have not directly stated that there is an independent duty to provide such employees with a reasonable accommodation, an employer’s failure to do so could be used as circumstantial evidence that an employer’s decision to deny an employee’s accommodation request was motivated by a discriminatory animus toward that employee’s association with a disabled family member.

I heard that there are new changes this month to the Department of Labor’s (“DOL”) regulations on the Families First Coronavirus Response Act (“FFCRA”).  What are the changes?

Recently, a District Court in New York issued a decision that found certain provisions of the DOL’s FFCRA regulations invalid. On September 11, 2020, the DOL posted revisions to its regulations in response to this court’s decision.  The revisions are set to be effective on September 16, 2020, and do the following:

  • Reaffirm and provide additional explanation for the requirement that employees may take FFCRA paid sick leave and expanded family medical leave only if work would otherwise be available to them.
  • Reaffirm and provide additional explanation for the requirement that an employee must have employer approval to take FFCRA leave intermittently.
  • Expand the eligibility of employees who are eligible for paid sick leave and expanded family medical leave who work for in the health care industry.  This change is significant and means that some employees who work for a health care provider or facility will now be eligible for paid sick leave and expanded family medical leave. The FFCRA previously allowed employers to exclude employees who are “health care providers” or who are “emergency responders” from eligibility for paid sick leave and expanded family medical leave.  The DOL revised the definition of “health care provider” to significantly narrow this exclusion.  The DOL’s new definition of a “health care provider” for purposes of determining eligibility for FFCRA paid sick leave and expanded family medical leave focuses on the duties of employees, rather than on the fact that the employer provides health care services.  Under the DOL’s new regulations, employers who are covered by the FFCRA can deny paid sick leave and expanded family medical leave only to those employees who meet this new definition of “health care provider.”  Health care providers are only those employees who  provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care. Some examples of employees who meet the definition of “health care provider” and are not eligible for FFCRA leave are nurses, nurse assistants, medical technicians, laboratory technicians who process test results, employees performing or assisting in the process of x-rays or other diagnostic tests and procedures, or transporting patients and samples.  Employees who do not meet the definition of “health care provider” and are therefore eligible for FFCRA leave include IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.
  • Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
  • Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.