Friday, November 20, 2020
Wednesday, October 21, 2020
Tuesday, September 15, 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.
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.
Wednesday, August 12, 2020
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.
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.
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.”
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.
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.
Friday, July 17, 2020
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.
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 VasquezD Vasquez Law, APC
Tuesday, July 7, 2020
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)?
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.
Monday, July 6, 2020
- 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.].)
- Critical parcel delivery employees.
- Employers who have a paid leave or paid time off policy that provides a minimumof 160 hours of paid leave annually.
- New businesses that started in the City or relocated to the City on or after September 4, 2019 through March 4, 2020.
- Government employees.
- 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.
- 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;
- 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;
- 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
- 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.
- 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.
- 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.