Flurry of Changes to California Employment Law

End of Legislative Session Brings Several Changes to the California Workplace

The combination of the continuing COVID-19 pandemic and the clock running out on this year’s legislative session produced a lot of tweaks to California employment law, ranging from workers’ compensation to employee privacy protections. Some of these new laws will have a relatively small impact, while others are large changes. Many of them took effect immediately after receiving Governor Newsom’s signature, and the rest will come into force in the new year.

Effective Immediately

COVID-19 in the Workplace

SB 1159 addresses employees contracting the virus while on the job. The bill creates a rebuttable presumption that workers who tested positive for COVID-19 within 14 days of working on-site from March 19 to July 5 were infected at work. Thus, they are eligible for temporary disability and workers’ compensation coverage. The bill carries this rebuttable presumption forward from July 6 only for first responders and healthcare workers. The presumption can be rebutted with evidence the employee contracted the virus off-duty.

Employees are presumed to get infected at work (and have access to workers’ compensation benefits) if an “outbreak” is at the workplace. An outbreak is defined as: four people (or four percent of the workplace for sites that have over 100 employees) testing positive within a 2-week period or officials order the site closed due to COVID-19 exposure risk.

Finally, SB 1159 requires employers to inform their workers’ comp carrier when an employee tests positive (if they know or should have known about the positive test) within three business days.

COVID-19 Related Supplemental Paid Sick Leave

The legislature also passed AB 1867, which expands access to COVID-19 related supplemental paid sick leave. It is intended to cover employers left out of the federal supplemental paid sick leave law. Under California’s version, employers with over 500 employees nationwide, first responders, and healthcare workers who were exempted from the federal law are now covered. Unfortunately, those employers cannot take advantage of the tax credit available to employers under the federal version.

Employees of covered businesses are eligible for paid sick leave if they:

  • a) are ordered by government authorities to quarantine or isolate,
  • b) advised by a healthcare provider to quarantine or isolate, or
  • c) prohibited from working by their employer due to COVID-19 concerns.

People working from home are not covered by the new law, and the expansion will expire when federal supplemental leave does (December 31, pending any changes at the federal level).

AB 685 lays out the employers’ responsibility to report potential exposure to the virus. Within one business day of learning of an exposure risk (ie, a worker testing positive, getting diagnosed, or ordered to quarantine), employers must inform all workers onsite with that worker at any point they were potentially infectious. Employers also must inform exposed workers of the COVID-19 related benefits available to them and inform all employees of their disinfection and safety plan. Additionally, employers must inform local health authorities if three workers test positive within a two-week span.

New Rules for Working Minors

Finally, the state passed three bills related to working minors. AB 908 makes it easier for minors to receive a work permit during COVID-19 related school closures by allowing electronic submission of required documents and waiving the minor and their parent’s physical appearance to receive a permit.

AB 3175 requires a minor’s parents/guardians to accompany the minor when they receive harassment prevention training before they can get a permit to work in the entertainment industry.

AB 3369 exempts minors who received a work permit in the last two years from the statewide harassment prevention training deadline of January 1, 2021, and instead requires they receive training every two years.

Effective January 1, 2021 – A Grab Bag of New Rules

Expanded CFRA Leave for Small Employers

The legislature transformed California’s family leave regime, covering many small businesses for the first time. SB 1383 covers all employers with five or more employees – and requires them to allow leaves of absence for employees after having a child, to deal with circumstances related to a family member’s active military duty, or to care for their parents, spouses, children, grandparents, grandchildren, and siblings. Employees are entitled to 12 weeks of unpaid leave within a 12 month period. Employees become eligible for leave after working 1,250 hours. Relatedly, the legislature passed AB 2992, which prohibits employers from retaliating or discriminating against employees who take time off to attend judicial proceedings or receive medical care after being the victim of a crime that causes physical or mental injury.

This new law will require many employers to revise their handbooks and workplace posters this year.

More Enforcement Procedures for Labor Commissioner

Two bills, SB 1384 and AB 3075, tweaked the Labor Commissioner’s ability to enforce the law. The first gives employees a year to file a complaint with the Commissioner alleging they were unlawfully discriminated against or retaliated against, as opposed to the current 6-month limit. The second bill allows the Commissioner to represent claimants who can’t afford counsel when a court orders arbitration of the claim.

Diversity in the Workplace

The legislature also passed bills seeking to increase diversity in the workplace. SB 973 requires employers with over 100 employees to submit a pay data report to the state with information about the gender and race of their workforce by March 31, 2021.

AB 979 requires publicly held corporations based in California to have at least one director on their board from an underrepresented community by the end of 2021, and at least two or three directors by 2022 depending on the size of the board. Underrepresented communities include racial/ethnic minorities and members of the LGBTQ community. 

Finally, the state once again exempted employment data from its stringent data privacy rules. AB 1281 exempts employment data through the end of 2021 – but leaves in place the requirements that employers provide notice (including the categories of info collected and the purpose of collection) when collecting personal information from an applicant or employee.

Original article J.T. Keane and Robert E. Nuddleman

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of our practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. Mr. Nuddleman advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, helps employers and employees with disability accommodation issues and ensures employees are correctly paid wages owed.

California Mandates FMLA/CFRA Leave for Small Employers

The Federal Family Medical Leave Act (“FMLA”) and the state equivalent California Family Rights Act (“CRFA”) require employers with 50 or more employees working within a 75-mile radius to provide up to 12 weeks of unpaid time off for serious or chronic medical conditions, and to bond with newborn children. California’s New Parent Act expands the CFRA bonding leave to employees working within a 75-mile radius of 20 employees.

Governor Newsom just signed SB-1383 expanding CFRA’s medical and bonding leave to any employer with 5 or more employees. This means small employers will be required to provide up to 12 weeks of unpaid time off in the following situations:

  • (A) Leave for reason of the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee.
  • (B) Leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition.
  • (C) Leave because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.
  • (D) Leave because of 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, as specified in Section 3302.2 of the Unemployment Insurance Code.

To qualify for the leave, the employee must have been employed with the employer for at least 12-months and must have worked at least 1,250 hours during the previous year.

Employers must grant the leave and provide “a guarantee of employment in the same or a comparable position upon the termination of the leave. “ Failure to provide the guarantee of employment is the same as denying the leave.

Employers with 50 or more employees are already familiar with the requirements under FMLA and CFRA. Now small employers will need to modify their policies and provide similar leave. When FMLA/CFRA were adopted, it only applied to employers with 50 or more employers because the legislature believed requiring small employers to keep a position open for 12 weeks would create an undue burden. This is particularly true when bonding leave is combined with pregnancy leave, providing an employee almost 7 months of time off.

The time off is unpaid, but:

Any employee taking leave pursuant to subdivision (a) shall continue to be entitled to participate in employee health plans for any period during which coverage is not provided by the employer under paragraph (1), employee benefit plans, including life insurance or short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as apply to an unpaid leave taken for any purpose other than those described 

In other words, if the employer voluntarily pays all or some of the health insurance premiums for an employee, the employer must continue the health insurance payments as though the employee was working.

I expect many employers will have difficulty complying with the new requirements that take effect January 1, 2021. It also means employers with less than 50 employees will need to update their employee handbooks and policies to include the new leave entitlement.

If you have questions about what leave might be available to you or your employees, contact the Nuddleman Law Firm, P.C. We help employers navigate the difficult terrain of California and Federal leave laws, and we help employees whose employers fail to provide required leave.

Original article Robert E. Nuddleman

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of our practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. Mr. Nuddleman advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, helps employers and employees with disability accommodation issues and ensures employees are correctly paid wages owed.

Free Sexual Harassment Prevention Training

California employers with 5 or more employees must provide sexual harassment prevention training for all employees every two years. Supervisors must receive 2-hours of training. All other employees must receive at least 1-hour of training.

The training must cover specific topics, and can only be conducted by certain experienced professionals. The CalChamber and other organizations offer fairly reasonably-priced online training videos. I, as well as other attorneys, provide live training. The price can vary significantly.

Now employers have a free option: The California Department of Fair Employment and Housing has finally posted their online training. And it is absolutely free!

I’m typically not a fan of “one-size-fits-all” video training because you don’t get to address specific issues or adapt the presentation to the company’s culture. But if you are going to do video training to meet your anti-harassment policy obligations, then the DFEH training is likely a good choice. Aside from being free, it will undoubtedly include all the required content.

My biggest concern about video training is that there is no evidence that video training about sexual harassment actually prevents sexual harassment. Live (including via Zoom or other webinar platforms) training can be adapted to fit a company’s specific needs and is usually more engaging than watching a pre-recorded video. Of course, live training may be more costly and it may be more difficult to conduct the training at the same time.

Although the legislature extended the time frame within which the sexual harassment prevention training must be completed, the date is rapidly approaching. If your employees have not received the required training, consider the DFEH Sexual Harassment Prevention Training. If you prefer a more tailored-training, give me a call.

Original article Robert E. Nuddleman

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of our practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. Mr. Nuddleman advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, helps employers and employees with disability accommodation issues and ensures employees are correctly paid wages owed.

Updated Employment Laws for San Francisco Employers

Employers with employees performing work in San Francisco need to know of three changes to local employment laws that take effective July 1, 2020:

  • Minimum Wage Increases to $16.07
  • Paid Parental Leave Expands to 8 Weeks
  • Updated Required Posters

Generally speaking, San Francisco’s employment-related ordinances apply if an employee works 2 or more hours per week in San Francisco.

SF Minimum Wage: $16.07

The San Francisco minimum wage increases to $16.07 per hour on July 1, 2020. The minimum wage proposition approved by San Francisco voters in 2014 requires that on July 1, 2020, the minimum wage rate be adjusted based on the annual increase in the Consumer Price Index.

Paid Parental Leave: 8 Weeks

California expanded the Paid Family Leave program for Claim Effective Dates beginning on or after July 1, 2020. Under the expanded benefits, employees are entitled to 8 weeks of California Paid Family Leave for new child bonding. Employers are required to extend paid parental leave compensation from 6 weeks to 8 weeks as of July 1, 2020.

When a Covered Employee gets 8 weeks of Paid Family Leave benefits from the California Employment Development Department (EDD), that employee is also entitled to 8 weeks of San Francisco Paid Parental Leave Ordinance Supplemental Compensation from their employer.

Required San Francisco Posters

Employers covered by San Francisco labor laws must place up-to-date required posters at each workplace or job site in a location where employees can see the postings easily.

Current posters are available to print on the OLSE website.

Original article Robert E. Nuddleman

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of our practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. Mr. Nuddleman advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, helps employers and employees with disability accommodation issues and ensures employees are correctly paid wages owed.

Sexual Orientation and Transgender Status are Protected by Title VII

In the long fight for equality, the Supreme Court officially ruled that dismissing an employee for being homosexual or transgender violates the Civil Rights Act of 1964 under Title VII. In 1964, Congress “outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin”. The Supreme Court decision on June 15, 2020, concluded these cases are examples of discrimination based on sex; that sex is a “necessary and undisguised” factor in the employer’s decision.

So, what brought these cases to the Supreme Court?

In 2013, Aimee Stephens, a transgender woman was fired from R.G. & G.R. Harris Funeral Homes. Mrs. Stephens was a recently promoted employee in good-standing. In 2013, she announced to family, friends, and co-workers she was starting treatment to transition into a woman. She informed her colleagues she will return to work dressed accordingly. Three days after the announcement, her employer fired her. In response, Mrs. Stephens sued under Title VII, alleging unlawful discrimination based on sex. The Sixth Circuit concluded that Title VII does not allow an employer to fire an employee because the individual is transgender. In Mrs. Stephens case, there was no question her transition was the reason for her termination. Her former boss testified in court that because Mrs. Stephens was “no longer going to present himself as a man”, they felt her relationship with the company would no longer work. Sadly, Mrs. Stephens died at age 59 in May of 2020 due to kidney failure. Her heirs did not let this end her fight for equal rights.

In a companion case, skydiving instructor Donald Zarda was fired after mentioning to a customer that Zarda was gay. Despite sever several years of employment with Altitude Express the company fired Mr. Zarda the following day. This happened in 2010. Mr. Zarda timely sued for discrimination but passed away in 2014 in a BASE-jumping accident.

Bostock v. Clayton County is the case most heavily associated with the Supreme Court’s decision. Gerald Bostock was a child welfare advocate in Clayton County Georgia. Mr. Bostock was a stellar employee for over a decade, having received national awards for his work. In his spare time, Mr. Bostock joined a gay recreational softball league. Members of his community made derogatory commentary regarding Mr. Bostock’s sexual orientation. His boss fired him for “conduct ‘unbecoming’ of a county employee”. Mr. Bostock sued, and the Eleventh Circuit concluded that Title VII does not prohibit employers from firing employees for sexual orientation.

Although Title VII does not specifically mention “sexual orientation,” “homosexuality” or “transgender status,” the court made clear that treating someone differently because of their sexual orientation or transgender status is a form of sex discrimination:

We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.

Think of it this way, if you fire a man because he wears a dress but won’t fire a woman because she wears a dress, that is treating someone differently “because of” his sex. If you discriminate against men who have romantic relationships with men, but don’t discriminate against women who have romantic relationships with men, you are discriminating against the person “based on sex.”

The origins and the individuals involved is a huge part of understanding why Title VII needed to be articulated. For many people, the ruling was shocking. For others, it was a long-waited landmark. Discrimination costs people their livelihood and puts their future at risk. Although some of these incidents took a decade to resolve, the Supreme Court’s decision and their stories help employees and employers recognize that every individual has the right to be treated equally in the workplace.

We anticipate the ripple effects in several areas of our society. hopefully, we will see positive changes in the workplace, but there is speculation regarding how religious-affiliated schools or workplaces will respond or what decisions will be needed. For now, many will celebrate this decision as a win for LGBTQ+ individuals and communities.

If you haven’t read the opinion, you can read it here. I highly recommend reading it. I think the decision was well-written, and tackles many of the arguments raised when trying to justify differential treatment. Ultimately, the arguments do not withstand judicial scrutiny.

Original article by Hannah Grossen, Legal Assistant. Edited by Robert E. Nuddleman

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of our practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. Mr. Nuddleman advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, helps employers and employees with disability accommodation issues and ensures employees are correctly paid wages owed.

Fight for Equality

In the wake of the terrible abuse of power and murder of George Floyd and the ensuing protests coupled with rioters taking advantage of the situation, I wasn’t sure how or whether to respond publicly. I don’t view myself as having a huge public reach, and typically prefer to keep my blog posts focused on employment law.

The disregard for Mr. Floyd’s life hurt my heart. The gathering together of communities in opposition to the police and the system that allowed this crime, and other similar crimes, provided hope. The destruction of property and theft of items by persons taking advantage of the pain suffered by Mr. Floyd, his family, and the community angered me. At the same time, I didn’t know that I could or should express my opinion. What did I have to offer in the public debate?

I’ve had, and continue to have, conversations with my family and close friends about the inequality in treatment between races and genders. We discuss the historical context and various contributing factors. We examine it from an economic and sociological perspective. We argue over whether it is acceptable to fight prejudice with prejudice or whether it is better to lead by example. We discuss the extent to which the media (including social media) influences and shapes public opinion, and the scope of our obligation to help shape that opinion. We talk about what we do and can do to provide opportunities to equalize the inequities.

I’ve used my passion and logic to influence my personal sphere of influence, but I wasn’t sure (and am still not entirely certain) on what else I can do to further justice and equality in a more public way. I am a Caucasian male, raised in a predominantly Caucasian community. Most of my family immigrated to the United States generations before I was born. Although I experienced some anti-semitism growing up, it was never at the hands of the government. My fears of the police were the result of my actions, not the color of my skin or the actions of others for whom I share a skin tone. I can imagine the experiences of people who face racial inequality and prejudice, but I can never really know their experience.

I’ve known excellent police officers and other government officials who I believe do their job to further justice and equality. I don’t know that I have ever met anyone who was completely unbiased. I don’t even know if that is possible. Many people are aware of their biases, or at least acknowledge that they likely have unconscious biases, that filter their perspectives. Many people are not aware of their biases and don’t believe they are biased. Some people are out and out bigots. So, again, what do I have to contribute to the public debate?

Then I thought about what I do on a daily basis. I am an employment attorney. For more than 20 years I have advised and represented individuals who were treated differently based on the color of their skin, their religion, their gender, their sexual orientation, their disabilities, and other protected characteristics. I educate employers on how to recognize, root out, and rectify unlawful harassment and discrimination. I create policies and procedures for employers so they can minimize the chance that conscious or unconscious biases will impact the workplace.

Few employment attorneys represent employers and employees. I have always represented both sides. I think it helps me understand the perspectives of the opposing side. It certainly helps me discuss and explain the complexities of employment law with my clients. By representing both sides, am I failing to take a side?

No. I fight for equality. I prevent discrimination and harassment from occurring in the first place by advising employers on how to ensure a harassment-free workplace. I represent employees who are victims of discrimination and harassment. In many ways, I get the best of both worlds.

This is not a solicitation for your business. I am not including my normal bottom-of-post message about my practice. This is just my heartfelt statement about the tragedy experienced by Mr. Floyd and his family, and my role in changing public action. I will continue to fight for equality in the workplace and in the community. I will continue to examine how I can further the struggle of my fellow humans.

Robert E. Nuddleman

New DOL FAQs on FFCRA

Is that enough abbreviations for you? The Department of Labor just issued a few new answers to frequently asked questions about Emergency Paid Sick Leave and Expanded Family Medical Leave under the Families First Coronavirus Response Act. Now you know why I used the abbreviations.

The FFCRA, which became effective April 2, 2020, and remains in place at least until December 31, 2020, provides paid time off for certain COVID-19 related reasons. The Act and the regulations implementing the Act were a bit rushed, leaving a number of unanswered questions.

The following are a few new answers just released:

Employee Previously Able to Telework Now Cannot Work Due to Childcare or School Closure

91. My employees have been teleworking productively since mid-March without any issues. Now, several employees claim they need to take paid sick leave and expanded family and medical leave to care for their children, whose school is closed because of COVID-19, even though these employees have been teleworking with their children at home for four weeks. Can I ask my employees why they are now unable to work or if they have pursued alternative child care arrangements?

You may require that the employee provide the qualifying reason he or she is taking leave, and submit an oral or written statement that the employee is unable to work because of this reason, and provide other documentation outlined in section 826.100 of the Department’s rule applying the FFCRA. While you may ask the employee to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work, you should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act. The fact that your employee has been teleworking despite having his or her children at home does not mean that the employee cannot now take leave to care for his or her children whose schools are closed for a COVID-19 related reason. For example, your employee may not have been able to care effectively for the children while teleworking or, perhaps, your employee may have made the decision to take paid sick leave or expanded family and medical leave to care for the children so that the employee’s spouse, who is not eligible for any type of paid leave, could work or telework. These (and other) reasons are legitimate and do not afford a basis for denying paid sick leave or expanded family and medical leave to care for a child whose school is closed for a COVID-19 related reason.This does not prohibit you from disciplining an employee who unlawfully takes paid sick leave or expanded family and medical leave based on misrepresentations, including, for example, to care for the employee’s children when the employee, in fact, has no children and is not taking care of a child.

Documentation for Employee with COVID-19 Symptoms

92. My employee claims to have tiredness or other symptoms of COVID-19 and is taking leave to seek a medical diagnosis. What documentation may I require from the employee to document efforts to obtain a diagnosis? When can it be required?

In order for your employee to take leave under the FFCRA, you may require the employee to identify his or her symptoms and a date for a test or doctor’s appointment. You may not, however, require the employee to provide further documentation or similar certification that he or she sought a diagnosis or treatment from a health care provider in order for the employee to use paid sick leave for COVID-19 related symptoms. The minimal documentation required to take this leave is intentional so that employees with COVID-19 symptoms may take leave and slow the spread of COVID-19.Please note, however, that if an employee were to take unpaid leave under the FMLA, the FMLA’s documentation requirements are different and apply. Further, if the employee is concurrently taking another type of paid leave, any documentation requirements relevant to that leave still apply.

Summer Vacation Does Not Entitle Employee to Paid Sick Leave

93. I took paid sick leave and am now taking expanded family and medical leave to care for my children whose school is closed for a COVID-19 related reason. After completing distance learning, the children’s school closed for summer vacation. May I take paid sick leave or expanded family and medical leave to care for my children because their school is closed for summer vacation?

No. Paid sick leave and emergency family and medical leave are not available for this qualifying reason if the school or child care provider is closed for summer vacation, or any other reason that is not related to COVID-19. However, the employee may be able to take leave if his or her child’s care provider during the summer—a camp or other programs in which the employee’s child is enrolled—is closed or unavailable for a COVID-19 related reason.

You can review all the FAQs at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

We are open and assisting clients throughout this process. Due to the volume of calls and emails, I may be a bit slower than normal, but please feel free to reach out if you have employment-related questions.

Information provided by Robert Nuddleman of the Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

Bay Area Counties Double Down on Shelter-in-Place Orders

This Article was updated on 4/7/2020 to include correcting and clarifying information from the Temporary Regulations on the FFCRA.

This is no April Fool’s joke. The same day the new Federal Families First Coronavirus Response Act goes into effect, 8 Bay Area jurisdictions extend the current Shelter-in-Place orders and further limit the list of “essential businesses.

Aside from extending the Shelter-in-Place order to May 3rd, the new orders also:

  • Limit activities at parks and other outdoor activities
  • Close playgrounds and shared facilities for recreational facilities
  • Close dog parks
  • Require essential businesses to prepare, post, and implement a Social Distancing Protocol
  • Limit the number of people allowed in a store at one time and providing guidance on how to control shopping lines
  • Require companies remaining open to provide hand sanitizer
  • Further limit allowable construction activities
  • Eliminate the exemption for businesses that sell products that allow people to work from home
  • Allow delivery of goods but not services to residences and businesses.

Fewer Essential Businesses Under New Stay at Home Orders

Even if you were an essential business under the prior order, or are an exempt business under California’s Stay-at-Home order, review your county’s Shelter-in-Place order to ensure you are still exempt from the order:

Remember, the counties and cities can create stricter restrictions than the state. Businesses exempt under the state order may not be exempt under the applicable county order.

Also, if you are an exempt business and you intend to remain open, you must adopt a conforming Social Distancing Protocol. The Alameda County Revised Order has a sample Social Distancing Protocol businesses and complete and post.

New Emergency Paid Sick Leave Answers

In other news, the Secretary of Labor’s FAQ’s regarding the FFCRA seem to confirm that the Emergency Sick Leave does not apply to business closures resulting from the shelter in place orders. Questions & Answers Numbers 23-25, and 27 indicate that emergency paid sick leave does not apply to worksite closures “pursuant to a Federal, State or local directive.”  As a result, the intended federal safety net for employees unable to work due to such local directives appears to be unemployment compensation (and not federal Emergency Paid Sick Leave).  By contrast, employees may be entitled to use state/local mandated paid sick leave for inability to work due to a shelter order (depending on the specific terms of the state or local paid sick leave law).

UPDATE 4/2/2020: After issuing the Q&A, the DOL issued Temporary Regulations indicating the above interpretation of the Q&A is incorrect.

§ 826.10 General of the regulations state:

For the purposes of the EPSLA, a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order. This also includes when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them. 

The regulations and Q&A still indicate if an employee is unable to work because the workplace has closed or has no work for the employee–even if the lack of work is related to COVID-19 or a shelter-in-place order–then the employee is not eligible for EPSL or EFMLA.

#25 If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?

If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

See Introduction to Regulations, page 14:

An employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee. This is because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order. For example, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment

See, also, § 826.20(a)(2) Paid Leave Entitlements:

An Employee Subject to a Quarantine or Isolation Order may not take Paid Sick Leave where the Employer does not have work for the Employee as a result of the order or other circumstances. 

We are open and assisting clients throughout this process. Due to the volume of calls and emails, I may be a bit slower than normal, but please feel free to reach out if you have employment-related questions.

Information provided by Robert Nuddleman of the Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

EDD’s Work Share Program

In these troubled times, unemployment insurance is on the top of many people’s minds, employers and employees alike. California offers a Work Sharing Program, with the goal of reducing the need for employers to furlough, rather than terminate, their staff in times of economic hardship. Essentially, under this program, the state incentivizes employers to make necessary cuts by reducing their staff’s hours instead of laying off a portion of their workforce. The state then pays impacted workers a partial unemployment benefit in order to assuage some of their lost income. This program has existed for decades but has taken on new importance as coronavirus places an unprecedented strain on businesses throughout the state. This article will explain the eligibility criteria of the workshare program and lays out the benefits of the program for both employees and employers, respectively.

Eligibility Criteria Under California’s Work Sharing Program

The workshare program is designed for employers who are unable to maintain the entirety of their usual payroll, due to an economic downturn or other shortfalls. In order to qualify, businesses must be legally registered in California, have an active California State Employer Account Number, and meet certain requirements regarding the size of the payroll reduction. At least 10 percent of a business’s workforce (a minimum of 2 employees) must be impacted, and the hour/wage reduction must be between 10 and 60 percent of the typical payroll. Employers that offer healthcare or retirement benefits to their staff must maintain their usual benefits, or change the benefits offered to all employees, not just those facing a pay cut.

The Work Sharing Program also has certain restrictions on who can participate. Seasonal or temporary workers are not covered, giving employers that rely on those workers few alternatives to layoffs in an economic crisis. Additionally, employees that are corporate officers or major stockholders in the business cannot receive payments. Finally, employers with a unionized workforce must receive approval from the collective bargaining agent in order to apply.

In order to apply for the program, employers must fill out an application provided by the state Employment Development Department documenting compliance with all of the above requirements and restrictions. The application must also include the name, SSN, and hire date of every employee covered by the plan. Importantly, the application also requires employers to certify that they are not using the Work Sharing program as a transition to layoffs.

Benefits for Employees Under the EDD’s Work Share Program

The primary benefit of this program for employees is continued employment. Covered employees maintain a portion of their normal wages and, in many cases, the same benefits they usually enjoy. They also receive more money from the state than they typically would if they were treated as “underemployed.” Underemployed employees receive only the difference between 75% of their reduced wages and their full unemployment benefit.

Under the Work Sharing Program, employees receive a proportion of their full unemployment benefit equal to the proportion by which their pay has been temporarily reduced.  Additionally, “partial” or “underemployment” benefits only phase in when workers’ weekly pay drops below approximately $600 (1.33 times the maximum weekly benefit amount). Work Sharing payments, however, are available to any worker whose employer participates in the program, regardless of their salary. It is important to note that Work Sharing benefits are deducted one dollar for every dollar paid to an individual by another employer, which limits the financial benefit of finding a second part-time job.

Benefits for Employers

The primary benefit for employers is the same as it is for employees: continued employment of a steady and experienced workforce. This saves an unquantifiable sum of potential costs, including the recruitment and training of new replacements. Work Sharing employers’ reserve accounts are charged the same amount they would be for regular unemployment benefits. Essentially, flexibility and continuity are the main advantages for employers who choose to participate in the Work Sharing program.

Determining whether the Work Sharing Program is right for you and/or applying to participate in the program is a complicated and difficult process. Contact us for assistance making the right decision for your business.

Written by J.T. Keane, edited by Robert Nuddleman; Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

The Times They Are A-Changin’

Last week was a bit of a whirlwind. Seven Bay Area Counties issued shelter-in-place orders. The Federal government passed two new laws as part of a larger bill providing extensive paid time off for employers with less than 500 employees. Governor Newsom issued Executive Order N-33-20 “ordering all residents are directed to immediately heed the current State public health directives.”

The Statewide stay-at-home order differs in some fairly significant ways from the county shelter-in-place orders. The same basic rule applies:

“Everyone is required to stay home except to get food, care for a relative or friend, get necessary health care, or go to an essential job. If you go out, keep at least 6 feet of distance.”

The list of “essential services” differs from the county orders. The State public health directives indicate the following essential services will remain open, such as:

  • Gas stations 
  • Pharmacies
  • Food: Grocery stores, farmers markets, food banks, convenience stores, take-out, and delivery restaurants 
  • Banks 
  • Laundromats/laundry services 
  • Essential state and local government functions will also remain open, including law enforcement and offices that provide government programs and services.

Additionally, companies “needed to maintain continuity of operation of the federal critical infrastructure sectors” are allowed to continue. Friday, March 20, 2020, the list of “Essential Critical Infrastructure Workers” was updated. I suspect this list will change over the coming days and weeks. As of today, the following are just a few of the categories of workers that are covered by my clients. This is not the complete list of workers considered part of the Critical Infrastructure. I put this list together so my clients could go to a single location and identify whether they can allow their workers to come to work.

Healthcare/Public Health Sector

  • Health care providers and caregivers (e.g., physicians, dentists, psychologists, mid-level practitioners, nurses and assistants, infection control and quality assurance personnel, pharmacists, physical and occupational therapists and assistants, social workers, speech pathologists and diagnostic and therapeutic technicians and technologists).
  • Hospital and laboratory personnel (including accounting, administrative, admitting and discharge, engineering, epidemiological, source plasma and blood donation, food service, housekeeping, medical records, information technology and operational technology, nutritionists, sanitarians, respiratory therapists, etc.).
  • Workers in other medical facilities (including Clinics, Community Mental Health, Home Health care, Hospices, Psychiatric, Residential, Rural Health Clinics, and Federally Qualified Health Centers, cannabis retailers).
  • Warehouse operators, and distributors of medical equipment, personal protective equipment (PPE), laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies, and tissue and paper towel products.
  • Public health/community health workers,
  • Behavioral health workers (including mental and substance use disorder) responsible for coordination, outreach, engagement, and treatment to individuals in need of mental health and/or substance use disorder services
  • Workers that manage health plans, billing, and health information, who cannot practically work remotely.
  • Workers who conduct community-based public health functions, conducting epidemiologic surveillance, compiling, analyzing and communicating public health information, who cannot practically work remotely.
  • Workers who provide support to vulnerable populations to ensure their health and well-being including family care providers
  • Workers performing security, incident management, and emergency operations functions at or on behalf of healthcare entities including healthcare coalitions, who cannot practically work remotely.
  • Workers who support food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, such as those residing in shelters.
  • Workers supporting veterinary hospitals and clinics

Emergency Services Sector

  • Workers – including contracted vendors — who maintain digital systems infrastructure supporting law enforcement and emergency service operations.
  • Private security, private fire departments, and private emergency medical services personnel.
  • County workers responding to abuse and neglect of children, elders and dependent adults.

Essential Workforce – Public Works

  • Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences.
  • Support, such as road and line clearing, to ensure the availability of needed facilities, transportation, energy and communications Support to ensure the effective removal, storage, and disposal of residential and commercial solid waste and hazardous waste.

Food and Agriculture

  • Workers supporting groceries, pharmacies, and other retail that sells food and beverage products, including but not limited to Grocery stores, Corner stores and convenience stores, including liquor stores that sell food, Farmers’ markets, Food banks, Farm and produce stands, Supermarkets, Similar food retail establishments, Big box stores that sell groceries and essentials
  • Restaurant carry-out and quick-serve food operations – including food preparation, carry-out and delivery food employees
  • Food manufacturer employees and their supplier employees—to include those employed in food processing (packers, meat processing, cheese plants, milk plants, produce, etc.) facilities; livestock, poultry, seafood slaughter facilities; pet and animal feed processing facilities; human food facilities producing by-products for animal food; beverage production facilities; and the production of food packaging
  • Employees and firms supporting food, feed, and beverage distribution (including curbside distribution and deliveries), including warehouse workers, vendor-managed inventory controllers, blockchain managers, distribution
  • Workers supporting cannabis retail and dietary supplement retail
  • Animal agriculture workers to include those employed in veterinary health;

Energy

  • Workers who maintain, ensure, or restore the generation, transmission, and distribution of electric power, including call centers, utility workers, reliability engineers and fleet maintenance technicians
  • Environmental remediation/monitoring technicians
  • Petroleum product storage, pipeline, marine transport, terminals, rail transport, road transport
  • Petroleum refinery facilities
  • Petroleum security operations center employees and workers who support emergency response services
  • Retail fuel centers such as gas stations and truck stops, and the distribution systems that support them.
  • Processing, refining, and transporting natural liquids, including propane gas, for use as end-use fuels or feedstocks for chemical manufacturing
  • Propane gas storage, transmission, and distribution centers

Water and Wastewater

  • Operational staff at water authorities
  • Operational staff at community water systems
  • Operational staff at wastewater treatment facilities
  • Workers repairing water and wastewater conveyances

Transportation and Logistics

  • Employees supporting or enabling transportation functions, including dispatchers, maintenance and repair technicians, warehouse workers, truck stop and rest area workers, and workers that maintain and inspect infrastructure (including those that require cross-border travel)
  • Taxis, transportation services including Transportation Network Companies, and delivery services including Delivery Network Companies
  • Maritime transportation workers – port workers, mariners, equipment operators
  • Automotive repair and maintenance facilities
  • Postal and shipping workers, to include private companies
  • Employees who repair and maintain vehicles, aircraft, rail equipment, marine vessels, and the equipment and infrastructure that enables operations that encompass movement of cargo and passengers

Communications and Information Technology

  • Maintenance of communications infrastructure- including privately owned and maintained communication systems- supported by technicians, operators, call-centers, wireline and wireless providers, cable service providers, satellite operations, undersea cable landing stations, Internet Exchange Points, and manufacturers and distributors of communications equipment
  • Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables
  • Installation, maintenance and repair technicians that establish, support or repair service as needed
  • Customer service and support staff, including managed and professional services as well as remote providers of support to transitioning employees to set up and maintain home offices, who interface with customers to manage or support service environments and security issues, including payroll, billing, fraud, and troubleshooting
  • Dispatchers involved with service repair and restoration
  • Data center operators, including system administrators, HVAC & electrical engineers, security personnel, IT managers, data transfer solutions engineers, software and hardware engineers, and database administrators
  • Client service centers, field engineers, and other technicians supporting critical infrastructure, as well as manufacturers and supply chain vendors that provide hardware and software, and information technology equipment (to include microelectronics and semiconductors) for critical infrastructure
  • Workers supporting the provision of essential global, national and local infrastructure for computing services (incl. cloud computing services), business infrastructure, web-based services, and critical manufacturing
  • Support required for continuity of services, including janitorial/cleaning personnel

Other Community-Based Government Operations and Essential Functions

  • The Courts, consistent with guidance released by the California Chief Justice
  • Security staff to maintain building access control and physical security measures
  • Weather forecasters
  • Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction)
  • Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of construction sites and construction projects
  • Commercial Retail Stores, that supply essential sectors, including convenience stores, pet supply stores, auto supplies and repair, hardware and home improvement, and home appliance retailers
  • Workers supporting the entertainment industries, studios, and other related establishments, provided they follow covid-19 public health guidance around social distancing
  • Workers critical to operating Rental Car companies that facilitate continuity of operations for essential workforces, and other essential travel
  • Workers that provide or determine eligibility for food, shelter, in-home supportive services, child welfare, adult protective services and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals (including family members)
  • Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities and critical sector services

Financial Services

  • Workers who are needed to process and maintain systems for processing financial transactions and services (e.g., payment, clearing, and settlement; wholesale funding; insurance services; and capital markets activities)

Defense Industrial Base

  • Workers who support the essential services required to meet national security commitments to the federal government and U.S. Military. These individuals, include but are not limited to, aerospace; mechanical and software engineers, manufacturing/production workers; IT support; security staff; security personnel; intelligence support, aircraft and weapon system mechanics and maintainers
  • Personnel working for companies, and their subcontractors, who perform under contract to the Department of Defense providing materials and services to the Department of Defense, and government-owned/contractor-operated and government-owned/government-operated facilities

Even if you are in one of the designated critical infrastructure workers or provide essential services, employers are encouraged to have employees work from home when possible. When that is not possible, employers and employees should

  • Wash hands with soap and water for at least 20 seconds
  • ·        Cover your cough or sneeze with a tissue
  • ·        Clean and disinfect frequently touched objects and surfaces
  • ·        If soap and water aren’t available, use alcohol-based hand sanitizer
  • Maintain social distance of 6 feet whenever possible

This is a highly stressful time for employees, employers and the community. The landscape changes quickly, and it can be difficult to stay on top of current rules and regulations without becoming overwhelmed. Take a deep breath. Focus on what’s in front of you.

The Nuddleman Law Firm, P.C. is open and helping clients during the shelter-in-place and stay-at-home orders. Our response time might not be as quick due to the volume of questions. I will do my best to send periodic updates and best practices to my clients. If you have questions or concerns, call me. If you get my voicemail, leave a message and I will return to your call as soon as practical.

Information provided by Robert Nuddleman of the Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.