News & Events

On-Duty Meal Periods Approved For Sole Workers

by Fenton & Keller

February 19, 2021

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.

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

by Fenton & Keller

February 5, 2021

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.

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COVID-19 Pandemic Layoffs

by Fenton & Keller

January 22, 2021

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.

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Mandatory COVID-19 Vaccinations in the Workplace

by Fenton & Keller

January 14, 2021

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.

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