New Year, New Laws - Welcome to 2021!

We have turned the page on a new year and much like previous years, January 1^st brings with it a slew of new employment laws. This article provides a brief summary of some of the most pertinent employment laws employers should get up to speed on for 2021. 

Attorneys Fees for Whistleblower Retaliation Claims and Extension of Filing Period for DLSE Claims (AB 1947)

AB 1947 expressly authorizes a court to award reasonable attorneys fees to a plaintiff who prevails in a “whistleblower” action under Labor Code Section 1102.5. In addition, this new law lengthens the period of time in which employees can file complaints with the California Division of Labor Standards Enforcement (DLSE). Employees who believe they have been wrongfully discharged or discriminated against in violation of any law enforced by the Labor Commissioner now have one year to file a DLSE complaint.

Workplace Exposure Reporting Due to COVID-19 (AB 685)

AB 685 imposes new employer reporting requirements and allows the state to track COVID-19 cases in the workplace. AB 685, which went into effect on January 1, 2021, requires employers to notify their employees, employees of subcontracted workers and union representatives of suspected and diagnosed cases of COVID-19. Specifically, employers are required to provide written notice to employees (and subcontracted employees who were at the worksite and may have been exposed) and employee representatives of their exposure within one business day of a “potential exposure” based on a positive confirmed case of COVID-19 in the workplace. The notice must also provide information regarding COVID-19-related benefits that employees may receive, including workers’ compensation benefits, COVID-19 leave, paid sick leave, and the company’s anti-discrimination, anti-harassment and anti-retaliation policies. Moreover, the notice must provide employees information related to the company’s disinfection protocols and safety plan to eliminate any further exposures, per Centers for Disease Control and Prevention guidelines.

If there is an “outbreak” of COVID-19 cases at the same worksite within a 14-day period, the employer must also report the outbreak to the local health department within 48 hours. More information about AB 685 can be found here in our prior blog post. 

Expansion of Paid Family Leave (AB 2399)

Prior to AB 2399, the Paid Family Leave (PFL) program provided wage replacement benefits for workers who took time off work to care for a seriously ill family member or to bond with a minor child within one year of birth or placement. Effective January 1, 2021, PFL will be expanded to provide wage replacement benefits to workers who take time off to participate in a qualifying exigency related to the covered active duty or call to covered active duty of the worker’s spouse, domestic partner, child or parent in the Armed Forces of the United States.

Independent Contractor Law has New and Expanded Exemptions (AB 2257)

Most employers know that AB 5 adopted the ABC test from the case Dynamex v. Superior Court in order to determine whether workers are properly classified as employees or independent contractors. Under the ABC test, workers in California are presumed to be employees unless the business benefiting from the worker’s services can prove all three prongs of the ABC test. This is still the test for independent contractor classification in California; however, AB 2257 expanded the universe of available exemptions from the ABC test. AB 2257, which went into effect on September 4, 2020 upon being signed into law, makes it easier for entertainers, freelance writers and photographers, and digital content aggregators to maintain independent contractor status. The law also amended certain existing exemptions under AB 5, including the business-to-business, referral agency and professional services exemptions.   

Kin Care and Sick Leave (AB 2017)

AB 2017 amends Labor Code Section 233, which permitted employees to use half of their annual accrual of sick leave to care for a family member. The amendment now gives employees the sole discretion to designate leave taken to care for a family member as sick leave.

Small Businesses Now Covered by Expanded CFRA (SB 1383)

Prior to this year, the California Family Rights Act (CFRA) made it an unlawful employment practice for any employer with 50 or more employees who work within 75 miles of the work site to refuse to grant a request by an eligible employee (i.e. worked 1,250 hours during the previous 12 months) to take up to 12 workweeks of unpaid job protected leave during any 12-month period to bond with a new child of the employee or to care for themselves, a child, a parent or a spouse.

Effective January 1, 2021, SB 1383 now makes CFRA apply to all employers with five or more employees. It also expands the definition of “family care and medical leave” to now include grandparents, grandchildren and siblings as well as a child of any age. Under the amended law, an employer who employs both parents of a child now must also grant CFRA leave to each employee for that child’s health condition, birth or placement. Finally, SB 1383 makes it an unlawful employment practice for any employer to refuse to grant a request by an employee to take up to 12 workweeks of unpaid protected leave during any 12-month period due to 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 armed forces of the United States. For more information about this law, see our prior blog post here.

Minimum Wage Increases

As of January 1, 2021, California’s minimum wage increased to $14 per hour for employers with 26 or more employees and $13 per hour for employers with 25 or fewer employees. Employers should keep in mind that this increase also affects minimum salary requirements for exempt employees. In addition, employers should take note of any local minimum wage increases because whatever rate is higher – state or local – will control for purposes of providing the proper minimum wage.

Permissible No-Rehire Provisions in Settlement Agreements (AB 2143)

Before AB 2143, the law prohibited “no rehire” provisions in settlement agreements under California Code of Civil Procedure Section 1002.5. AB 2143 amended this law to permit no-rehire provisions in settlement agreements when the “aggrieved person” did not bring the claim in good faith. Further, the law clarifies that the prior no-rehire exception for sexual harassment and sexual assault claims required that the employer made a documented and good-faith determination that the subject individual engaged in sexual harassment or sexual assault before the aggrieved person filed a claim. Additionally, AB 2143 expands the sexual harassment and sexual assault exception to allow no-rehire provisions in instances where the employer determined the employee engaged in criminal conduct.

Annual Reporting Pay Data to the DFEH (SB 973)

SB 973 expands the reporting requirements for employer Information Reports (EEO-1). Private employers with 100 or more employees that are required to file an annual EEO-1 under federal law are now also required to submit payroll data to the Department of Fair Employment & Housing (DFEH). This report must contain information about employees’ race, ethnicity and gender in various job categories. The report is due on or before March 31, 2021.

Disputable Workers’ Compensation Presumption (SB 1159)

On September 17, 2020, Governor Newsom signed SB 1159 into law, which went into effect immediately for all employers. SB 1159 provides that a “disputable presumption” exists for an employee who suffers illness or death resulting from COVID-19 on or after July 6, 2020 through January 1, 2023. The presumption is that the illness or death related to COVID-19 is an occupational injury such that the employee is entitled to workers’ compensation benefits. The employer may dispute this presumption with evidence that it had measures in place to reduce potential transmission of COVID-19 in the employee’s workplace and/or evidence of the employee’s non-occupational risks of COVID-19 infection.

Victims of Crime or Abuse Receive Further Protections (AB 2992)

Effective on January 1, 2021, AB 2992 amends California Labor Code sections 230 and 230.1 by prohibiting an employer from “discharging, or discriminating or retaliating against, an employee who is a victim of crime or abuse[,] for taking time off from work to obtain or attempt to obtain relief.” AB 2992 expanded upon the exiting law which provided protected leave for employees who were victims of domestic violence, sexual assault or stalking to now include leave for victims of other crimes or offenses “that caused physical injury or that caused mental injury and a threat of physical injury.” The new law also provides protected leave for an employee “whose immediate family member is deceased as a direct result of a crime” and extends the types of documentation required for leave eligibility to verify that a crime or abuse occurred.

This publication is general in nature and is not intended to replace professional legal advice. Questions regarding specific matters or circumstances should be discussed with legal counsel.

AB 685: New COVID-19 Reporting Obligations for Employers

On September 17, 2020, Governor Newsom signed into law AB 685, which imposes new notice obligations on employers if an employee is exposed to COVID-19. The bill becomes effective on January 1, 2021 and will sunset on January 1, 2023. The provisions in the bill apply to both public and private employers with some minor exceptions as explained below. Below are some commonly asked questions and answers related to AB 685.

What is AB 685?

The law: (1) requires employers to notify employees who may have been exposed to COVID-19; (2) requires employers to report workplace “outbreaks” to the local health department; (3) requires the California Department of Public Health (CDPH) to publicly report information on workplace outbreaks; and (4) authorizes Cal/OSHA to enforce COVID-19 hazards as an imminent hazard to provide immediate protections for workers.

What Kind of Information are Employers Required to Provide Their Employees?

Once an employer receives “notice of a potential exposure” to COVID-19 in the workplace, the employer must:

(1)   Provide written notice to its employees and the employer of subcontracted workers that they may have been exposed to COVID-19. The employer can inform workers of the dates that an individual with COVID-19 was at the worksite but should not share information that could identify the affected individual. The employer must also provide this notice to the exclusive labor representative of an employee, if any.

(2)   Provide information to employees about COVID-19 benefits under federal, state, or local laws. This includes workers’ compensation, company sick leave, state federal or local-mandated leave, supplemental sick leave, negotiated leave, and anti-discrimination as well as anti-retaliation protections. 

(3)   Inform employees and the employer of subcontracted workers of the disinfection and safety plan for the worksite, in accordance with CDC guidelines. This information must also be provided to the exclusive labor representative, if any.

NOTE: the phrase “notice of a potential exposure” is a defined term under AB 685 – please see Section 4 (d)(3)(A)-(D). 

How and When Should Workers be Notified?

Employers must provide written notice to their employees and the employer of subcontracted workers within 1 business day of receiving notification of potential exposure. This written notice can be hand-delivered, sent by email, or via text message and should be in English as well as any other language understood by the majority of employees. Said notice must also be provided to the exclusive labor representative, if any, within 1 business day.

Which Workers Must Receive the Notice?

All employees and employers of any subcontracted employees who were at the same worksite as the worker diagnosed with COVID-19 during their infectious period must be notified. The term “infectious period” means the time a COVID-19 positive individual is infectious as defined by the State Department of Public Health.

When are Employers Required to Report COVID-19 Cases to the Local Health Department?

Employers must report COVID-19 “outbreaks” within 48 hours to the local health department. Outbreaks are defined as 3 or more COVID-19 cases among workers at the same worksite within a 14-day period. Employers must continue to notify the local health department of additional COVID-19 cases identified among workers at the worksite. 

The reporting obligation to the local health department does not apply to a “health facility” as defined in Section 1250 of the California Health and Safety Code (which are largely those that provide 24-hour care). 

What Kind of Information Needs to be Reported to the Local Health Department?

(1)   Information about the worksite – name of company/institution; business address; and North American Industry Classification Statement (NAICS) industry code.

(2)   Names and occupations of workers with COVID-19.

(3)   Additional information requested by the local health department as part of their investigation.

Who is Deemed a COVID-19 Case?

Under AB 685, a COVID-19 case is someone who:

(1)   Has a positive viral test for COVID-19;

(2)   Is diagnosed with COVID-19 by a licensed health care provider;

(3)   Is ordered to isolate for COVID-19 by a public health official; or

(4)   Dies due to COVID-19, as determined by a public health department.

If an employer is notified of individual(s) in the workplace who meets any of the above-stated criteria, then it must notify workers and the local health department as described above.

Which Employers Have to Follow AB 685?

All public and private employers in California must follow AB 685 except:

·        “Health facilities” as defined in Section 1250 of the California Health and Safety Code (which are largely those that provide 24-hour care) are not subject AB 685’s requirements for reporting outbreaks to local health departments, but they must continue to follow existing reporting requirements. All other AB 685 requirements apply to health facilities, including notifying employees of potential exposure to COVID-19 and benefits information. 

·        The notice and reporting requirements of AB 685 do not apply to employees who, as part of their duties, conduct COVID-19 testing or screening or provide direct patient care or treatment to individuals who are known to have tested positive for COVID-19, are persons under investigation, or are in quarantine or isolation related to COVID-19, unless the person with the COVID-19 case is an employee at the same worksite. 

What is an Employer’s Record Keeping Obligations?

An employer must maintain records of the written notifications required under this law for a period of at least 3 years.

What Does AB 685 Authorize Cal/OSHA to do?

AB 685 authorizes Cal-OSHA to:

·        Issue an Order Prohibiting Use to shut down an entire worksite or a specific worksite area that exposes employees to an imminent hazard related to COVID-19.

·        Cite or fine employers for serious violations related to COVID-19 without having to provide 15-days’ notice.

·        Cite or fine employers for violations of AB 685 worker notification provisions.

This publication is general in nature and is not intended to replace professional legal advice. Questions regarding specific matters or circumstances should be discussed with legal counsel.

NEW CALIFORNIA FAMILY RIGHTS ACT (CFRA) SUBSTANTIALLY IMPACTS MANY EMPLOYERS

California employers with as few as five employees must provide family and medical leave rights to their employees pursuant to Senate Bill 1383 (SB 1383), signed by Governor Gavin Newsom on September 17, 2020. This new law repealed the current California Family Rights Act (CFRA) and eliminated the California New Parent Leave Act and replaced it with the new CFRA, found under California Government Code Section 12945.2 et seq.  The new CFRA significantly expands the leave’s reach to more employers, substantially increases the reasons for which an employee can take CFRA leave and increases the scope of the family members for whom CFRA leave may be used. This new law goes into effect on January 1, 2021. Expanded Eligibility to Small Employers Under pre-existing law, employers were not required to provide family care and medical leave under CFRA if the employee seeking leave worked at a worksite with fewer than 50 employees within a 75-mile radius. Similarly, employers were not required to provide “baby bonding” leave under the New Parent Leave Act (NPLA), if the employee seeking leave worked at a worksite with fewer than 20 employees within a 75-mile radius. SB 1383 expands the obligation to provide leave to small employers not previously covered. The new law requires employers with at least five employees to provide eligible employees with up to 12 workweeks of unpaid job-protected leave during any 12-month period for certain covered reasons (as explained below). The employer must maintain and pay for the employee’s coverage under a group health plan for the duration of the leave at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. Additional Covered Family Members and Expanded Reasons for Leave SB 1383 expands the covered family members and potential reasons for which an eligible employee may take leave. Under SB 1383, eligible employees may take leave to bond with a new child of the employee or to care for themselves or a child (regardless of the child’s age), parent, grandparent, grandchild, sibling, spouse, or domestic partner. Under the prior CFRA statute, leave for purposes of caring for a family member was available only if the family member was the employee’s child (who had to be under 18 years old or 18 and over and incapable of self-care due to mental or physical disability), a parent, spouse, or domestic partner. However, with the enactment of SB 1383, all eligible employees will be able to care for all those previously provided under the law plus grandparents, grandchildren, siblings, and children of all ages. SB 1383 also requires an employer that employs both parents of a child to grant up to 12 weeks of leave to each employee. Under pre-existing law, the employer only had to grant both employees a combined total of 12 weeks of leave. In addition, the new law requires employers to provide up to 12 weeks of unpaid job-protected leave during any 12-month period due to 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 Armed Forces of the United States. Furthermore, SB 1383 does not permit an employer to refuse reinstatement of “key employees” as was previously allowed by CFRA under qualifying circumstances. Under SB 1383, employees will still need to meet eligibility requirements, including 12 months of service and 1,250 hours worked for the employer in the previous 12-month period, to qualify for family and medical leave. Risk of 24 Weeks of Protected Family and Medical Leave for Larger Employers SB 1383 also creates a unique issue for employers that have 50 or more employees and are therefore covered under both the new CFRA and the federal Family and Medical Leave Act (FMLA). Generally, leaves under CFRA and FMLA run concurrently, which means an employee is generally only eligible for a total of 12 weeks of unpaid leave under both laws. However, SB 1383 now expands the definition of “family member” under the new CFRA in a manner that is different from the definition under the federal FMLA. This, therefore, creates a situation in which an employee could be eligible for 12 weeks of leave under the new CFRA but also remain eligible for a full additional 12 weeks under FMLA. For example, suppose an employee working for an employer with 50 or more employees needs to take family leave to care for his brother that has a serious health condition. Under SB 1383, the employee would be eligible to take up to 12 weeks of CFRA leave. However, since “siblings” are not covered under the federal FMLA, that same employee is potentially still eligible to take 12 weeks of leave under the FMLA to care for a sick child, parent or spouse. Accordingly, under this example, an employer could be faced with providing up to 24 weeks of leave to such an employee. What Should Employers Do Now Smaller employers who previously were not covered by CFRA need to immediately begin the process of preparing for January 1, 2021 and speak with their employment counsel and HR personnel to develop proper policies and procedures and update their employee handbooks. Similarly, given the expanded definition of “family member” under the new CFRA, even employers that were already covered by CFRA will need to update their policies, procedures, forms and employee handbooks.  D Vasquez Law is here to help. Contact us today!  This publication is general in nature and is not intended to replace professional legal advice. Questions regarding specific matters or circumstances should be discussed with legal counsel.

NEW: CA Covid-19 Supplemental Paid Sick Leave Law (AB 1867)

On September 9, 2020, Governor Newsom signed Assembly Bill 1867, which requires private employers with 500 or more employees nationwide as well as certain health care providers and emergency responders, to provide COVID-19-related supplemental paid sick leave to their California employees. The law is effective immediately and impacted employers must begin providing this leave to their employees no later than September 19, 2020.

The purpose of this new Covid-19 Supplemental Paid Sick Leave law (“SPSL” or “New Law”) is to “eliminate coverage gaps to ensure every employee has access to paid sick days if they are exposed or test positive to COVID-19 for 2020”.  Specifically, SPSL is intended to close the gaps between federally mandated paid COVID-19 related sick days (i.e. the FFCRA Emergency Paid Sick Leave) and the Governor’s previous Executive Order that only provided paid sick leave for food sector workers. The New Law implicates all private employers with over 500 employees, as well as public and private employers of first responders and health care employees who opted not to provide leave under the federal law.

Below is a summary of some of the key provisions of the New Law.

When Impacted Employers Have to Provide SPSL:

Employees who must leave their home to perform work are entitled to SPSL if they are unable to work when they are: (1) subject to a federal, state, or local quarantine or isolation order related to Covid-19; (2) advised by a health care provider to self-quarantine or self-isolate due to concerns related to Covid-19; or (3) prohibited from working by the employer due to health concerns related to the potential transmission of Covid-19.

Employer Pay Obligations Under SPSL:

Employees are entitled to SPSL based on their regular schedules as follows:

·         For employees who work “full time” and were scheduled to work or did work on average at least 40 hours per week in the two weeks preceding the date of taking this leave, 80 hours (except for certain firefighters);

·         For employees with a normal weekly schedule, the total number of hours the employee is normally scheduled to work over two weeks;

·         For employees who work a variable number of hours, 14 times the average number of hours the employee worked each day in the six months preceding the date the employee took SPSL; or

·         For employees who work a variable number of hours and have worked for a period of 14 or fewer days, the total number of hours the employee has worked for that employer.

The law permits the employee to determine how many hours of SPSL to use, and requires the employer to make SPSL available for immediate use upon the employee’s oral or written request.

SPSL must be paid at an hourly rate of the highest of: (1) the employee’s regular rate of pay for the last pay period (including amounts subject to any applicable collective bargaining agreement); (2) state minimum wage; or (3) local minimum wage. However, like the Emergency Paid Sick Leave provided under FFCRA, employers are not required to pay any more than $511 per day and $5,110 total to an employee for SPSL.

 

The law prohibits employers from requiring an employee to use any other paid or unpaid leave, paid time off, or vacation time before SPSL or in lieu of SPSL, and also serves as additional leave on top of any paid sick leave that may already be available to employees under Labor Code Section 246.

Impact of Previously Provided Covid-19 Paid Sick Leavfe by Employers:

Where an employer previously provided Covid-19 related sick leave, but did not pay it at the rates required under the New Law, SPSL expressly authorizes an employer to retroactively provide supplemental pay to that covered worker in an amount equal to or greater than that required under the New Law, rather than providing additional leave time.

Also, if an employer already provides or provided employees with a supplemental benefit, such as supplemental paid leave, that is payable for the Covid-19 reasons identified in the New Law, then the employer may count the hours of that other paid benefit or leave toward the total number of hours of SPSL that it is required to provide under this New Law.

Wage Statement Obligations:

Employers must update their wage statements to provide notice of the amount of paid sick leave available under this New Law, and could be subject to liability for failure to do so starting with the pay period following the law’s September 9, 2020 enactment.

Enforcement and Notice Requirements:

The New Law authorizes the Labor Commissioner to cite employers for their failure to provide SPSL, which the Governor states is “a critical enforcement tool that will promote safety for employees and customers alike.” In addition, the Labor Commissioner must make a model notice available by September 16, 2020 for use by employers.

The foregoing provisions related to SPSL are effective until the later of December 31, 2020, or expiration of any federal extension of the Families First Coronavirus Response Act.

Click here for the text of AB 1867

This publication is general in nature and is not intended to replace professional legal advice. Questions regarding specific matters or circumstances should be discussed with legal counsel.

Employer Obligations When an Employee Tests Positive for COVID-19

 

Employer Obligations When an Employee Tests Positive for COVID-19

Although there is a lot of guidance available regarding an employer’s obligation when an employee tests positive for COVID-19 positive, the key steps to keep in mind are summarized below:

STEP #1: Send the Employee Home

The first thing an employer must do is to immediately send the sick employee home.  Even if a business is deemed an “essential business,” any employee who is sick needs to be send home right away.

An employee who is sick and who tests positive for COVID-19 should stay home for 10 days after the symptoms first appeared and for 24 hours after their recovery (i.e. once there is no fever without the use of fever reducing medicine and have experience improvement in symptoms – e.g. cough, shortness of breath, etc.). 

Employees who have been exposed to COVID-19 but have not shown any symptoms and have not been tested, should quarantine for 14 days, which is deemed the incubation period for the virus.

STEP #2: Identify “Close Contacts”

The second step employers need to take is to ask the sick employee to think about where he/she/they have been in the previous two weeks and identify any coworkers who he/she/they have had close contact with.  The term “close contact” is defined as having been within six feet of an infected person for 15 or more continuous minutes, even if all the parties were wearing masks at the time.  It is important to note that the infectious period includes at least the last 48 hours before the individual developed symptoms. 

Quarantine

Those determined to have been in “close contact” with an infected employee also need to be sent home and quarantine for the incubation period of 14 days.  If the quarantined employee develops COVID-19 symptoms during that time, then he/she/they will need to stay home for 10 days after their symptoms first appeared and for 24 hours after their recovery.

Privacy

Due to confidentiality and privacy laws, when an employer is talking to employees or third parties (i.e. vendors) about their exposure, the employer should not reveal the name of the employee who has tested positive for COVID-19.  Employers may say something along the lines of “We think you may have been exposed to someone with COVID-19.  Therefore, you will have to quarantine.” 

Pay Obligations

Employers must pay for the day an employee is sent home (reporting time pay obligation). Nonexempt employees may use vacation or sick time, if available, to cover their wages during their quarantine or sick period. In some cases, workers may be able to obtain compensation through the Families First Coronavirus Response Act.

If an exempt employee is sent home to quarantine, then the employee should be advised not to work from home. Alternatively, if the employee can work from home and it can be agreed upon, then the employer needs to keep paying the exempt employee’s salary.

STEP #3: Investigate, Record and Report

OSHA recently released new recordkeeping obligations for covered employers.  To help ensure compliance, employers should document their efforts in determining whether a positive COVID-19 case was work-related.  This can be achieved by conducting an investigation once the employer has learned of an employee’s COVID-19 illness. 

For example, the employer should:

1-      Ask the infected employee how they believe they contracted COVID-19;

2-      Keeping privacy considerations in mind, speak with the infected employee and discuss their work and out-of-work activities that may have led to their illness;

3-      Review and analyze the employee’s work environment for potential COVID-19 exposure.

If an employer conducts a reasonable and good faith inquiry but is unable to determine whether it is more likely than not that exposure in the workplace played a role in the COVID-19 case, then the employer is likely not required to record the illness. 

Employers should regularly check local and state regulatory agency guidelines regarding any other investigation, reporting and recording obligations due to a positive COVID-19 case.  For example, should an employee test positive for COVID-19, the employer will need to contact their local health department.  In Los Angeles County, employers that have knowledge of 3 or more positive COVID-19 cases among their employees within a 14-day period must report it as an “outbreak” to the Department of Public Health.  In addition, if an employee is hospitalized for at least 24 hours, the employer will have to record the information on the Cal/OSHA Form 300, Log of Work-Related Injuries and Illnesses.

STEP #4: Disinfect and Clean the Workspace

Once an employer knows of a confirmed COVID-19 case, it should follow the Center for Disease Control (CDC) guidelines for cleaning and disinfecting the workplace.  If using cleaners other than household cleaners with greater frequency than an employee would use at home, then ensure employees are trained on the hazards of the cleaning chemicals used and maintain a written program in accordance with OSHA’s Hazard Communication standard. 

Final Note

Employers should regularly check with their local and state Department of Public Health, Cal/OSHA, and the CDC regarding any guidance issued on the foregoing topics to ensure they have the latest applicable information.

Should you need assistance navigating your obligations, please give me a call. 

Midyear Employment Law Update – 2020

While COVID-19 has been in the forefront of most legal issues for employers in 2020, a host of non-COVID legal developments have also taken place requiring California employers to take heed.  Below is a summary of some of these new laws:

Fair Employment and Housing Act Regulations

Effective July 1, 2020, the new Fair Employment and Housing Act (FEHA) regulations clarify a number of key employment practices:

·         Employers cannot request scheduling information from applicants to ascertain an applicant’s religious creed, disability or medical condition.  If an employer makes any scheduling inquiring during the pre-employment phase (i.e. application, interview), it must clearly communicate that the applicant does not need to disclose any scheduling restrictions based on legally protected grounds (i.e. religion, disability or medical condition).  An employer that does not comply with this practice will be in violation of FEHA unless it can prove its practice was job related and consistent with business necessity.   

·         To prevent age discrimination, employers cannot ask applicants when they graduated or their date of birth.  In addition, online applications cannot (1) require applicants to enter their age in order to access or complete an application; (2) use drop-down menus that contain age-based cut-off dates; or (3) utilize automated section criteria or algorithms that effectively screen out applicants age 40 and older.

·         Employers are now substantially limited in the language that can be used in recruiting and advertising – prohibiting anything that a “reasonable person would interpret as deterring or limiting employment of people age 40 and over”, unless age is a bona fide occupational qualification for the position. 

·         The revised FEHA regulations create a presumption of age discrimination for practices that have an adverse impact on applicants and employees age 40 or over, even if the practice or policy looks neutral and does not specifically target older workers.

Workers’ Compensation

On January 1, 2020, AB 5, the independent contractor bill that codified the “ABC Test” outlined by the California Supreme Court’s 2018 Dynamex decision and extended it to the Labor and Unemployment Insurance Codes, went into effect.  However, one provision of that law was delayed until July 1, 2020.  Specifically, the ABC Test will apply for purposes of workers’ compensation beginning July 1, 2020.  This means, the Workers’ Compensation Appeals Board will now use Labor Code Section 2750.3 (the ABC Test or an exclusion) to determine whether someone is entitled to workers’ compensation benefits (as an employee) or not (as an independent contractor). 

Expanded Paid Family Leave Benefits

As a result of SB 83, beginning July 1, 2020, the maximum duration of Paid Family Leave (PFL) benefits an individual can receive from California’s State Disability Insurance program will go from six to eight weeks.  PFL provides partial wage replacement to employees who are absent from work to care for a seriously ill family member or to bond with a minor child within one year of birth or placement of the child via foster care or adoption.

Minimum Wage Updates

On January 1, 2020, the California minimum wage increased to $13/hr for employers with 26 employees or more and $12/hr for employers with 25 employees or fewer.  However, on July 1, 2020, a number of localities increased their minimum wage requirements.  Below is a list of those localities:

• Alameda: $15/hour.
• Berkeley: $16.07/hour.
• Emeryville: $16.84/hour;
• Fremont: $15/hour for employers with 26 or more employees; $13.50/hour for employers with 25 or fewer employees.
• Los Angeles City: $15/hour for employers with 26 or more employees; $14.25/hour for employers with 25 or fewer employees.
• Los Angeles County (unincorporated areas): $15/hour for employers with 26 or more employees; $14.25/hour for employers with 25 or fewer employees.
• Malibu: $15/hour for employers with 26 or more employees; $14.25/hour for employers with 25 or fewer employees.
• Milpitas: $15.40/hour.
• Novato: $15/hour for employers with 100 or more employees; $14/hour for employers with 26-99 employees; $13/hour for employers with 25 or fewer employees.
• Pasadena: $15/hour for employers with 26 or more employees; $14.25/hour for employers with 25 or fewer employees.
• San Francisco: $16.07/hour.
• San Leandro: $15/hour.
• Santa Monica: $15/hour for employers with 26 or more employees; $14.25/hour for employers with 25 or fewer employees.
• (NEW) Santa Rosa: $15/hour for employers with 26 or more employees; $14/hour for employers with 25 or fewer employees.

U.S. Supreme Court Case Re: Title VII

On June 15, 2020, the U.S. Supreme Court issued a highly anticipated decision ruling that sexual orientation and gender identity are protected by Title VII of the Civil Rights Act’s sex discrimination protections. (Bostock v. Clayton County, Georgia, No. 17-1618, (U.S., Jun. 15, 2020).)  Accordingly, any employment decision based, at least in part, on a person’s sexual orientation or gender identity constitutes unlawful discrimination under Title VII. 

Background Report Disclosure

The Ninth Circuit Court of Appeals recently held that a background report disclosure to a job applicant, which is required by the Fair Credit Reporting Act, may be provided to the applicant at the same time as other hiring-related documents as long as it is a “standalone” document that consists only of the disclosure.  In other words, the disclosure cannot be buried inside other documents, such as a job application.

If you have any questions regarding the foregoing laws and how it impacts your business, please give me a call.

Donna Vasquez

D Vasquez Law, APC

This publication is general in nature and is not intended to replace professional legal advice. Questions regarding specific matters or circumstances should be discussed with legal counsel.

Going Back to Work Tips During COVID-19

Greetings!

The Centers for Disease Controls and Prevention (CDC) recently released guidance to assist employers in making decisions about resuming work during the COVID-19 pandemic. Aside from following the recommendations issued by state and local health departments, the following list provides helpful tips and guidance from the CDC:

1. Questions To Consider Before Reopening
According to the CDC guidance, you should consider three questions when deciding whether to reopen:

• Are you in a community no longer requiring significant mitigation?

• Will reopening be in compliance with state and local orders?

• Will you be ready to protect employees at higher risk for severe illness? (e.g. teleworking, tasks that minimize contact)?

It is recommended that you only consider reopening if you can answer “yes” to each of the three questions set forth above.

2. Do A Risk Assessment And Prepare A Plan
Once you decide your organization can reopen, you should conduct a risk assessment of your site and prepare a site-specific protection plan incorporating the State's and CDC’s recommended safety actions.

3. Establish Safeguards For The Ongoing Monitoring Of Employees
You should establish and implement safeguards for the ongoing monitoring of employees.

4. Prepare Your Physical Workspace
The final step before you reopen your business involves the proper preparation of your physical workspace for reentry by workers, customers, guests, and other visitors.

5. Be Attentive
Unfortunately, your work does not end just because you have opened your doors and welcomed your workers and others into your establishment. The CDC recommends that you maintain routine cleaning and disinfection procedures after reopening and to continue following recommended safety actions. 

More information about each of the foregoing topics can be found by clicking "Read More" below.

READ MORE

 

This publication is general in nature and is not intended to replace professional legal advice. Questions regarding specific matters or circumstances should be discussed with legal counsel.

City of LA Supplemental Paid Sick Leave due to COVID-19

On March 27, 2020, the Los Angeles City Council passed an ordinance that Mayor EricGarcetti signed into law on April 7, 2020. This supplemental paid leave ordinance istargeting larger employers with employees working within the geographic boundaries ofthe City of Los Angeles. Below is a brief summary of some of the key issues addressed inthis new law.

Which employers are affected? ​An employer that has either 500 or more employeeswithin the City of Los Angeles or 2,000 or more employees within the United States. Forthose with 2,000 or more employees within the US, it applies to employers that employworkers in LA. Also, if a collective bargaining agreement is in place as of April 7, 2020,that does not address COVID-19 related sick leave, the employer must comply with theorder until the agreement is amended to expressly waive the terms.

When is this paid sick leave effective? ​April 7, 2020. It expires two weeks after theexpiration of the COVID-19 local emergency period. ​Are there exemptions? ​Yes, thereare six exemptions for which an employer above may qualify.

1. Emergency and health services personnel. (​Pleasenote​, for purposes of this law,an employer of an employee who is a “health care worker” shall be exempt fromthis Order. These include individuals described in Cal. Gov. Code section 12945.2(c)(6) [i.e. physicians, surgeons, podiatrists, dentists, clinical psychologists,optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical socialworkers, physician assistants – but not medical assistants, registered nurses, orother employees within a healthcare facility] and those working at health facilitieslicensed under California Health and Safety Code section 1250 [i.e. facilitiesproviding 24 hour or more care, such as hospitals, skilled nursing facilities,hospices, etc.].)
2. Critical parcel delivery employees.
3. Employers who have a paid leave or paid time off policy that provides a minimumof 160 hours of paid leave annually.
4. New businesses that started in the City or relocated to the City on or after September 4, 2019 through March 4, 2020.
5. Government employees.
6. Closed businesses and organizations—any business or organization that wasclosed or not operating for a period of 14 or more days due to a city official’semergency order because of the COVID-19 pandemic or provided at least 14 daysof leave shall be exempt from the Order.

Which employees may apply for the supplemental paid sick leave? ​An employeewho has been employed with the employer from Feb. 3, 2020 through March, 4, 2020,and performs any work within the geographic boundaries of LA.

What are the qualifying reasons for an employee being granted this paid sickleave? ​The employee must be unable to work or telework for one of the four qualifyingreasons listed below:

1. The employee takes time off due to COVID-19 infection or because a public healthofficial or healthcare provider requires or recommends the employee isolate orself-quarantine to prevent the spread of COVID-19;
2. The employee takes time off work because the employee is at least 65 years old orhas a health condition such as heart disease, asthma, lung disease, diabetes,kidney disease, or weakened immune system;
3. The employee takes time off work because the employee needs to care for a familymember who is not sick but who public health officials or healthcare providers haverequired or recommended isolation or self-quarantine; or
4. The employee takes time off work because the employee needs to provide care fora family member whose senior care provider or whose school or child care providercaring for a child under the age of 18 temporarily ceases operations in response toa public health or other public official’s recommendation. This provision is onlyapplicable to an employee who is unable to secure a reasonable alternativecaregiver.

What documentation can the employer request to grant leave for these qualifyingreasons? ​This leave must be granted upon oral or written request and no doctor’s note orother documentation is required.​

Can an employer offset the amount of paid sick leave under this ordinance? ​Yes.The employer’s obligation to provide 80 hours of paid sick leave for this ordinance isreduced for every hour an employer allowed an employee to take paid leave in an amount equal to or greater than the requirements of this ordinance, not including previouslyaccrued hours, after March 4, 2020, for any reasons set forth above in response to anemployee’s inability to work due to COVID-19. This supplemental paid sick leave ordinanceis in addition to California/Los Angeles mandated paid sick leave.

Amount of Leave: ​If an employee is unable to work or telework, they are entitled to leaveas follows:

1. An employee who works at least 40 hours per week or is classified as a full-timeemployee by the employer shall receive 80 hours of supplemental paid sick leave.Supplemental paid sick leave shall be calculated based on an employee’s averagetwo week pay over the period of February 3, 2020 through March 4, 2020.
2. An employee who works less than 40 hours per week and is not classified as afull-time employee by the employer shall receive supplemental paid sick leave in anamount no greater than the employee’s average two week pay over the period ofFebruary 3, 2020 through March 4, 2020. In no event shall the supplemental paidsick leave amount paid to an employee exceed $511 per day and $5,110 in theaggregate.

A copy of this new ordinance is attached.

Should you have any questions or need any assistance with this new legislation, please feel free to contact D Vasquez Law.

This publication is general in nature and is not intended to replace professional legal advice. Questions regarding specific matters or circumstances should be discussed with legal counsel.