News & Events

Employee Handbook Updates Required for 2021

by Sara Boyns

October 16, 2020

Question: We haven’t updated our Employee Handbook for a few years.  Do we need to update it for 2021?

Answer:  Yes, there are several new laws that require employers of all sizes to update their employee handbook.  The new laws and required updates include:

• Expanded Leave Rights. Employers with 5-49 employees must adopt and implement a new California Family Rights Act (CFRA) policy.  Effective January 1, 2021, Senate Bill (SB) 1383 will require employers with 5-49 employees to provide up to 12 weeks of unpaid leave to qualifying employees.  Leave may be taken due to the birth, adoption or foster care of a child; the need to care for an eligible family member with a serious health condition; the employee’s own serious health condition; or a qualifying exigency  related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the United States Armed Forces.  SB 1383 repeals California’s New Parent Leave Act because it is no longer needed. It expands the definition of a “family member” and a “child,” so employers with 50 or more employees must revise existing CFRA policies to comply with this new law.  Also, the Department of Labor issued new Family Medical Leave Act (FMLA) forms in June 2020, and employers must modify their forms to comply with both the FMLA and the new CFRA.

The statutes relating to Crime Victims leave and Organ and Bone Marrow Donation leave have also changed, requiring updating of those policies.

• Harassment Prevention. Employers must ensure that their harassment prevention policy complies with new laws passed in 2019. Furthermore, all employers of 5 or more employees must provide 1 hour of sexual harassment and abusive conduct prevention training to nonsupervisory employees and 2 hours of this training to supervisors and managers once every two years.  The deadline to complete training is January 1, 2021.

In addition to updating employee handbooks, employers should prepare now to comply with the following new requirements:

• Revise Illness & Injury Prevention Program. In May 2020, Cal/OSHA issued Interim General Guidelines for Protecting Workers from COVID-19. The new guidance identifies specific infection control measures that are mandatory for California employers to implement and include in their IIPP. See https://www.dir.ca.gov/dosh/coronavirus/general-industry.html.
• Adopt a COVID-19 Specific Workplace Safety Plan. Cal/OSHA and the California Department of Public Health require all employers to adopt and implement a COVID-19 specific workplace safety plan and provide employee training.   The plan must be specific to your workplace, identify all areas and job tasks with potential exposures to COVID-19, include control measures to eliminate or reduce such exposures, maintain healthy business operations and a healthy work environment, and encourage employees to provide input into the plan.  See guidance for the plan here: https://files.covid19.ca.gov/pdf/employer-playbook-for-safe-reopening--en.pdf
• Prepare COVID-19 Exposure Notices.  Effective January 1, 2021, Assembly Bill 685 requires employers to provide notification to employees and local and state public health officials of potential exposure to COVID-19 in the workplace.  Notice of potential exposure must be provided to employees within one business day of the employer’s receipt of notice of a positive COVID-19 diagnosis or isolation order.  Employers should prepare the notices in advance so they can meet this strict deadline.

COVID-19 has presented new and confusing challenges for the workplace.  Having clear policies that ensure employees are well informed is more important than ever.

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New Employer Notice Requirements Related to Workplace Exposure to COVID-19

by Sara Boyns

October 2, 2020

Question: Is it true that employers will soon be required to provide notice to employees if there is a risk that they may have been exposed to COVID-19 in the workplace?

Answer: Yes.  On September 17, 2020, Governor Newson signed AB 685, which requires employers to provide timely notification to employees and to local and state public health officials of potential exposure to COVID-19 in the workplace.

AB 685 applies to all private and public employers, but does not apply to a health facility or employees who conduct COVID-19 testing or screening, or who provide direct patient care to individuals with known or suspected cases of COVID-19.  Employers who receive notice of a potential COVID-19 exposure in the workplace by a “qualifying individual” (defined as a person who has a laboratory confirmed case of COVID-19, a positive COVID-19 diagnosis from a licensed health care provider, a COVID-19 related isolation order issued by a public health official, or who died due to COVID-19), must provide notice to employees of the potential exposure within one business day of being informed of the potential exposure.  The employer may not disclose the name of the qualifying individual.  The notice must be in writing and  provided to:

• All employees, and employers of subcontracted employees, who were present at the same “worksite” as the qualifying individual within the “infectious period,” as defined by the State Department of Public Health, which is currently a minimum of 48 hours before the individual developed symptoms. The “worksite” is defined as the place where the qualified individual worked during the infectious period.
• The employees’ representative(s), if any, including unions and attorneys.

The notice must be provided in the manner the employer normally uses to communicate employment related information to employees, as long as it can be reasonably anticipated that the notice will be received within one business day.  The notice must be provided in English and the language understood by the majority of the employees.

The notice must include:

• A description of all COVID-19 related benefits or leave rights available to employees under federal, state, and local laws, and pursuant to the employer’s policies, as well as information regarding the prohibition of retaliation and discrimination against employees.
• The employer’s plans for implementing and completing a disinfection and safety plan pursuant to the federal Centers for Disease Control guidelines. The disinfection and safety plan must be provided to all employees, not just those who were potentially exposed to COVID-19.

Employers are required to maintain records of the notices they provide for a minimum of three years.  An employer must also notify its local public health agency within 48 hours if the number of workplace COVID-19 cases meets the State Department of Public Health’s definition of a COVID-19 outbreak (currently defined as three or more laboratory-confirmed cases of COVID-19 among workers who live in different households within a two-week period.)

AB 685 authorizes the California Division of Occupational Safety and Health to prohibit the operation of or entry into the workplace if it determines there is an imminent hazard to employees because of the risk that employees will be exposed to COVID-19.  AB 685 becomes effective January 1, 2021; therefore, employers should prepare now for the new notice and reporting requirements.  The full text of AB 685 can be found at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB685.  Additionally, California Department of Public Health guidance can be found at: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Workplace-Outbreak-Guidance.aspx

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Recent Changes to COVID-19 Paid Leave Programs

by Fenton & Keller

September 23, 2020

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.

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California COVID-19 Supplemental Paid Sick Leave

by Fenton & Keller

September 18, 2020

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

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