Labor and Employment

On November 30, 2020, the California Division of Occupational Safety and Health’s (“Cal/OSHA”) Emergency COVID-19 Prevention Regulation went into effect. The regulations apply to all employers, employees, and to all places of employment with three exceptions: (1) workplaces where there is only one employee who does not have contact with other people; (2) employees who are working from home; and (3) employees who are covered by the Aerosol Transmissible Diseases regulation.

The emergency regulations provide additional requirements on employers in light of the COVID-19 pandemic in the following areas: COVID-19 prevention, the handling of COVID-19 infections and COVID-19 outbreaks (including major outbreaks), COVID-19 prevention in employer-provided housing, and COVID-19 prevention in employer-provided transportation to and from work. Employers should review the regulations in detail to understand how their own workplace might be affected. Among the issues addressed by the emergency regulations, are the following:

1. Employers must adopt a written COVID-19 Prevention Program containing the following information:

• Communication to employees about the employer’s COVID-19 prevention procedures
• Identify, evaluate and correct COVID-19 hazards
• Physical distancing of at least six feet unless it is not possible
• Use of face coverings
• Use engineering controls, administrative controls and personal protective equipment as required to reduce transmission risk
• Procedures to investigate and respond to COVID-19 cases in the workplace
• Provide COVID-19 training to employees
• Provide testing to employees who are exposed to a COVID-19 case, and in the case of multiple infections or a major outbreak, implement regular workplace testing for employees in the exposed work areas
• Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk
• Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and the local health department, as required

2. Guidance on dealing with employees who are COVID-19 positive, or who have been exposed to the illness. Specifically, employers are directed to exclude COVID-19-positive employees and those who have been exposed to COVID-19 from the workplace. If the employee is able and available to work, the employer must continue to provide the employee’s pay and benefits, unless the employer can establish the employee’s exposure was not work-related. The employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount an employee receives in other benefit payments.
3. Specific guidance on what additional actions employers must take amidst a major COVID-19 outbreak, which is defined as a covered workplace that has 20 or more COVID-19 cases within a 30 day-period.

Employers can find more information on the Cal/OSHA COVID-19 Guidance and Resources website here, (link https://www.dir.ca.gov/DIRNews/2020/2020-99.html. In addition, FAQ’s on the emergency regulations can be found here (link https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html).

These emergency regulations are now in effect. Employers should immediately review their Cal/OSHA COVID-19 Prevention Plans to ensure compliance with the new regulation. In many cases, employers will need to revise and update their plans, and payroll procedures previously implemented, in order to comply with these new emergency regulations.

The Labor and Employment attorneys at Weintraub Tobin continue to wish you and your family good health during these challenging times.  If we can assist you in any of your employment law needs, feel free to reach out to us.

California Gov. Gavin Newsom signed Executive Order N-62-20—way back on May 6, 2020—which created a presumption that employees’ COVID-19-related illnesses were caused at work and therefore covered by workers’ compensation. That order covered COVID-19 infections from March 19, 2020 to July 5, 2020, at which time the order expired. To fill the void, on September 17, 2020, Gov. Newsom signed Senate Bill (“SB”) 1159 and Assembly Bill (“AB”) 685 into law.

SB 1159 resets the rebuttable presumption establishing workers’ compensation benefits for certain employees who contract COVID-19. At the same time, California passed AB 685, which allows the state to more closely track COVID-19 cases in the workplace by requiring employers to timely report COVID-19 related exposure information to the California Division of Occupational Safety and Health (“Cal/OSHA”). AB 685 also requires employers to provide notice to employees of workplace COVID-19 exposures.

To read the full article, please click here.

On Thursday, Governor Newsom signed Senate Bill 1383, dramatically expanding the California Family Rights Act (“CFRA”), and the obligations it places on employers to provide leave to eligible employees. As a reminder, the CFRA is California’s leave statute, which authorizes eligible employees to take up a total of 12 weeks of unpaid job-protected leave during a 12-month period. While on leave, employees keep the same employer-paid health benefits they had while working.

Historically, the CFRA has applied to employers employing at least 50 employees. SB 1383 expands the CFRA to employers throughout the state who employ 5 or more employees.  In addition, SB 1383 expands the definition of a “family member” to include adult children, siblings, grandparents, grandchildren and domestic partners. The changes go into effect on January 1, 2021.

Read More

On September 11, 2020, the United States Department of Labor issued revised regulations governing the Families First Coronavirus Response Act (FFCRA). The regulations implement the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) provisions of the FFCRA. The revised regulations were issued to address a decision from a federal court in New York that invalidated previous regulations concerning whether work must otherwise be available to employees seeking to use leave under EPSLA and EFMLEA and whether an employer must consent to intermittent leave. The revised regulations also clarify and narrow the definition of “health care provider” under the FFCRA and address medical documentation requirements employees must meet to be eligible to take leave.

Refresher on FFCRA

In March 2020, at the outset of the COVID-19 pandemic, Congress enacted the FFCRA. We initially blogged about the FFCRA here. In short, the FFCRA requires employers with 500 or fewer employees to offer up to 2 weeks of EPSLA leave to employees who miss work for qualifying reasons relating to the pandemic. Where the need to miss work results from the employee’s need to stay home with a child whose school or childcare facility is closed due to the pandemic, employees may take up to 12 weeks of paid and unpaid leave under EFMLEA. The first two weeks of EFMLEA leave are unpaid, but employees seeking pay could  choose to use EPSLA leave or any other paid leave otherwise available to the employee such as state law sick leave or any accrued paid vacation benefits. The last 10 weeks of EFMLEA leave are paid. Employers may receive a tax credit for any leave paid out under the FFCRA. Unless extended, the FFCRA is set to expire at the end of 2020.

New York Opinion Invalidates Certain FFCRA Regulations

Last month, in response to a challenge brought by the New York Attorney General, a federal court struck down four provisions of the FFCRA’s prior regulations.  Specifically, the court struck down regulations requiring work to be otherwise available to employees before they can qualify for EPSLA or EFMLEA, requiring employees to obtain employer approval before taking intermittent leave, and requiring employees to provide medical documentation regarding the reasons for leave “prior to” taking the leave. Finally, the court struck down as overbroad the FFCRA’s definition of “health care provider” as used to determine those health care providers who were ineligible for the leave.

The Revised Regulations

Following the New York ruling, the DOL was widely expected to issue revised regulations addressing the items the court raised. The September 11, 2020 DOL release does just that. According to the DOL’s news release, found here, the revisions do the following:

• Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
• Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
• Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
• Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
• Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

Work Availability Requirement

The DOL’s position that work must be available to an employee seeking to take leave reflects a doubling down on their regulation that the court struck down. Recognizing the court’s opinion that the prior regulation lacked sufficient analysis of why work must be available to the employee, the DOL provided that analysis. The DOL clarified that when work is unavailable due to circumstances other than a FFCRA-qualifying reason, such as when an employee is furloughed or the business is temporarily shut down, there is no work available from which an employee can take leave.

The DOL further explained that “leave is most simply and clearly understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave.” In those circumstances, an employee’s recourse may instead be to file for unemployment insurance benefits. The revised regulation does, however, make clear that employers cannot withhold work in order to avoid paying EFMLEA or EPSLA. Instead, work must be unavailable for legitimate business reasons.

Employer Consent to Intermittent Leave

Just as with the work availability requirement, the New York court struck down the requirement that employees taking intermittent EPSLA or EFMLEA leave must obtain employer consent because, according to the court, the DOL’s initial rule lacked sufficient analysis and explanation for the requirement. Again, the DOL doubled down on its prior rule while providing much more detailed reasoning for it. The DOL noted that the FMLA provides for intermittent leave only for qualifying reasons, such as medical necessity and employer/employee agreement. Because the FFCRA is silent on employees’ ability to take intermittent leave, and because the “medical necessity” basis for leave under the FMLA does not fit within the EFMLEA framework, the DOL concluded that it had discretion to balance employees’ need for leave with employers’ need to avoid business disruptions. It balanced those competing interests by requiring employees to obtain employer consent to take intermittent leave.

Narrowed Definition of Health Care Provider under Exemption

The FFCRA exempts employers from offering EFMLEA or EPSLA to certain health care providers. The previous definition, which the New York court struck down as too broad, included “anyone employed at” any location “where medical services are provided.” This could have included those workers at the facilities who did not even provide healthcare services, such as IT staff, human resources, or kitchen workers. Under the revised rule, “[a] person is not a health care provider merely because his or her employer provides health care services or because he or she provides a service that affects the provision of health care services.” Rather, the employee must meet the definition of healthcare provider under the FMLA (essentially, those workers who directly provide the healthcare services), or those who are “employed to provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.”

Notice and Documentation Requirements

Under the prior rules, struck down by the New York court, employees were required to provide employers with notice of the need for FFCRA leave, and documentation supporting the need for leave, prior to being eligible. Under the revised regulation, employees are now only required to provide notice and documentation “as soon as practicable.”  The DOL did note, however, that in the cases of employees needing leave due to a child’s school closure, the leave will almost always be foreseeable in advance and should therefore be provided prior to the leave being taken.

Takeaway for Employers

For now, employers can follow the new DOL regulations in administering FFCRA leave. That means employers are not obligated to provide EFMLEA or EPSLA leave to employees who are furloughed or are otherwise unable to work for reasons that do not relate to the COVID-19 pandemic. Employers may also decide whether to allow employees intermittent leave under the FFCRA. Such decisions, however, should be made for legitimate business reasons and applied consistently to avoid the risk of discrimination claims. Employers in the healthcare industry may utilize the updated definitions of healthcare provider in assessing whether employees are eligible for FFCRA leave. Finally, employers should not require employees to provide notice and documentation supporting their need for FFCRA leave any earlier than is practicable under the circumstances.

Employers should also watch for future developments around these regulations. First, it is not yet known whether they will be subjected to any further court challenges and, if so, what the outcome of those challenges will be. Employers should also monitor whether Congress elects to extend the FFCRA, with or without modifications, beyond its current expiration date of December 31, 2020. Employers with any uncertainty in these areas should work with their legal counsel to assure their practices and policies are compliant.

On August 28, 2020, California introduced the Blueprint for a Safer Economy, also known as “California’s Plan for Reducing COVID-19 and Adjusting Permitted Sector Activities to Keep Californians Healthy and Safe.” This new Blueprint was devised to aid California residents as the state reopens in the wake of the COVID-19 pandemic. Under this new plan, every county in California is assigned one of four tiers, based on the county’s test positivity and adjusted case rate. A county’s tier will determine what industries are permitted to reopen and what modifications are required.

As defined by the Blueprint, each of California’s 58 counties was assigned to one of the following four tiers based upon the counties health metrics on August 28, 2020, with  Tier 1 (Widespread) being the most restrictive:

(See https://covid19.ca.gov/safer-economy/)

While the California Department of Public Health (“CDPH”) will assess and release the health indicators each week, to move to a less restrictive tier, a county must have been in the current tier for a minimum of three weeks, and must meet criteria for the next tier for the prior two weeks, in order to progress to the next tier. Further, a county can only move forward one tier at a time, even if metrics qualify that county for a more advanced tier. Alternatively, if during the weekly assessment a county’s adjusted case rate and/or test positivity has been within a more restrictive tier for two consecutive weekly periods, the county must revert to the more restrictive tier.

Much of California remains in the “purple” most restrictive tier, which significantly limits what industry sectors are permitted to reopen. A list of each industry sector, and when it is permitted to be open with modifications, can be found here: https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-19/Dimmer-Framework-August_2020.pdf. As counties move through the tiers, more industry sectors will be permitted to reopen based upon their perceived risk. The criteria being considered by the State to determine low/medium/high risk sectors includes the following:

• Ability to wear face covers at all times (e.g. eating and drinking would require removal of face covering)
• Ability to physically distance between individuals from different households
• Ability to limit the number of people per square foot
• Ability to limit duration of exposure
• Ability to limit amount of mixing of people from differing households and communities
• Ability to limit amount of physical interactions of visitors/patrons
• Ability to optimize ventilation (e.g. indoor vs outdoor, air exchange and filtration)
• Ability to limit activities that are known to cause increased spread (e.g. singing, shouting, heavy breathing; loud environs will cause people to raise voice)

The new public health order can be found here: https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-19/8-28-20_Order-Plan-Reducing-COVID19-Adjusting-Permitted-Sectors-Signed.pdf, and residents can refer to the Blueprint for a Safer Economy website here: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/COVID19CountyMonitoringOverview.aspx.

As always, the Labor and Employment attorneys at Weintraub Tobin continue to wish you and yours health and safety during these challenging times.  If we can assist you with your employment law needs, please feel free to reach out to any one of us.

On August 27, 2020, the U.S. Department of Labor (DOL) published three new “Return to School” FAQs providing guidance for employers and employees as schools reopen across the country. Specifically, the DOL clarified when employees may be eligible for leave under the federal Families First Coronavirus Response Act (FFCRA).

As a reminder, under the FFCRA, job-protected leave must be provided to some employees in order to care for a child whose school or place of care is closed, or childcare provider is unavailable, due to the coronavirus. The newest FAQs address issues employers and employees are facing as schools reopen both virtually, as well as on a “hybrid” model. The DOL further provides guidance on situations where schools have reopened, but the parent chooses a virtual model for their child’s learning.

Scenario 1: School Remains Fully Remote

Many schools across the country (and most in California) are currently only offering remote learning. In FAQ 100, the DOL confirmed that parents are permitted to take paid leave under the FFCRA for as long as the school remains closed to in-person learning.

Scenario 2: School Reopens on a Hybrid Model

Under a hybrid model, a school is typically open, but students alternate between in-person and remote learning. Under FAQ 98, the DOL clarifies that parents are eligible to take paid leave under the FFCRA on days where the child is not permitted to attend school in person, and must instead engage in remote learning. FFCRA leave is not available, however, at times when the child is able to attend school in-person.

Scenario 3: School Reopens, but Parent Chooses Remote Option

Most schools offering in-person learning are also providing a virtual option for parents who are concerned about their child returning to school. The DOL clarifies in FAQ 99 that FFCRA leave is not available to take care of a child whose school is open for in-person attendance. It is worth noting, however, that if the child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, paid leave might otherwise be available.

The full FAQ’s can be found here (https://www.dol.gov/agencies/whd/pandemic/ffcra-questions). If you have questions as to whether FFCRA applies to you and your employees, and whether paid leave might be available, please contact your Weintraub Tobin labor and employment attorney for help.