An innovative provider of sophisticated legal services in over 45 practice areas.

Welcome to the Weintraub Tobin Resources Page

Browse below for news, legal insights, information on presentations and events, and other resources from the Weintraub Tobin legal team.

FFCRA Tax Credits for Paid Sick Leave and Emergency Family Leave Extended Through September 2021

Published: March 17, 2021

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

The American Rescue Plan Act of 2021 (“ARPA”) was signed by President Biden on March 11, 2021.  Part 5 of the ARPA provides for additional credits to employers whose choose to grant paid sick leave and emergency family leave to eligible employees under the FFCRA.

To be clear, the ARPA does not require employers provide FFCRA leave to employees. That mandate expired on December 31, 2020.  However, the continuation of certain tax credits for employers who voluntarily provide FFCRA leave has been extended from March 31, 2021 until the end of September, 2021.

Additionally, the ARPA made some other changes to expand employee eligibility (reasons) for taking FFCRA leave, reset the cap on the total amount of paid sick leave an employee can take, and increased the cap on wages paid for emergency family leave. Below is a summary of some of the main changes made by the ARPA.

Bad News for Employers: The California Supreme Court Disallows Rounding Meal Periods and Creates a Presumption that the Meal Period Law is Violated When Time Records Show Late, Interrupted, Or Missed Meal Periods

Published: March 3, 2021


The Labor & Employment Law Blog

Background:

Under California law, employers must provide non-exempt employees with one 30-minute meal period that begins no later than the end of the fifth hour of work and another 30-minute meal period that begins no later than the end of the tenth hour of work.  Cal. Lab. Code § 512; IWC Wage Order No. 4-2001, § 11(A).  If an employer does not provide an employee with a compliant meal period, then “the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal . . . period is not provided.”  Cal. Lab. Code, § 226.7; Wage Order No. 4, § 11(B).  Employers must pay this penalty, also known as a “meal period premium,” every time a non-exempt employee takes a late meal period, is interrupted by work during a meal period, or misses a meal period.  Should an employee voluntarily decide to forgo the employer-provided meal period, the employer need not pay a premium.  However, if an employee is entitled to two meal periods and waives the first, the second meal period cannot be waived.  Cal. Lab. Code § 512.

Are You Asking Applicants When They Can’t Work? If So, You May Be Violating FEHA

Published: February 23, 2021

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

While employers were busy dealing with a multitude of issues during the peak of the Covid-19 pandemic in the Spring of 2020, the California Department of Fair Employment and Housing (“DFEH”) quietly issued some amended regulations that employers should be aware of as they relate to employer interviewing and hiring practices. The regulations went into effect on July 1, 2020 and below are some of the highlights.

  1. Employers cannot seek information about an applicant’s religion or disability through certain pre-employment questions about the applicant’s availability for work. The regulations state expressly that:

“Pre-employment inquiries regarding an applicant’s availability for work on certain days and times shall not be used to ascertain the applicant’s religious creed, disability, or medical condition. Such inquiries must clearly communicate that an employee need not disclose any scheduling restrictions based on legally protected grounds, in language such as: “Other than time off for reasons related to your religion, a disability, or a medical condition, are there any days or times when you are unavailable to work?” or “Other than time off for reasons related to your religion, a disability, or a medical condition, are you available to work the proposed schedule?”

  1. Likewise, an application for employment also cannot contain such questions. The regulations provide that:

“Schedule Information. An application’s request for information related to schedule and availability for work shall not be used to ascertain the applicant’s religious creed, disability, or medical condition. Such requests must clearly communicate that an employee need not disclose any scheduling restrictions based on legally protected grounds in language such as: “Other than time off for reasons related to your religion, a disability, or a medical condition, are there any days or times when you are unavailable to work?” or “Other than time off for reasons related to your religion, a disability, or a medical condition, are you available to work the proposed schedule?”

Updated CDC Guidance: Fully Vaccinated Individuals Need Not Quarantine After COVID-19 Exposure

Published: February 17, 2021

by Shauna N. Correia
The Labor & Employment Law Blog

The CDC’s guidelines state that individuals should quarantine for 14 days after contact with someone with COVID-19, which can be reduced to 10 days if no symptoms developed after exposure.  Now that vaccines are becoming more widely available, employers are asking whether the quarantine period can be shortened or eliminated for their workers who have received the vaccine.

The CDC has stated that the quarantine period can be eliminated entirely for a fully vaccinated individual who meets all criteria – but the guidance is conditioned on the individual meeting all three criteria:

The criteria for allowing a vaccinated individual to skip quarantine – and continue working – after exposure to a COVID-19 case, are:

New Year, New Minimum Wage

Published: December 31, 2020


The Labor & Employment Law Blog

Effective January 1, 2021, California’s minimum wage rate increased to $14.00 per hour (from $13.00) for employers with 26 or more employees and $13.00 per hour (from $12.00) for employers with 25 or fewer employees. The minimum wage will continue to increase yearly until it reaches $15.00 per hour on January 1, 2022 for employers with 26 or more employees and January 1, 2023 for employers with 25 or fewer employees.

In California, many cities and counties are increasing their minimum wages faster than the state. Click here for a chart of increases set to take place in 2021.

Also note that effective January 1, 2021, the minimum salary threshold for exempt executive, administrative, and professional employees is as follows:

  • $58,240 per year (or $1,120 per week) for employers of 26 or more employees
  • $54,080 per year (or $1,040 per week) for employers of 25 or fewer employees

Further, in order to maintain their exempt status, commissioned inside salespeople will need to earn more than $21 per hour (for employers of 26 of more employees) or $19.50 per hour (for employers of 25 or fewer employees).

Mandatory Vaccines in the Workplace? New EEOC Guidance Regarding What Employers Can Do

Published: December 18, 2020

by Ryan E. Abernethy
The Labor & Employment Law Blog

The FDA’s rollout of COVID-19 vaccinations has given hope to many employers that we may finally be witnessing the horizon of the pandemic. But this good news comes with a few side-effects, including the question of whether employers can require, or even encourage, their employees to get vaccinated.

To that end, on December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding the COVID-19 vaccinations in the workplace and the interplay with other employment laws.

Newsom Signs Executive Order Modifying CalOSHA’s Emergency Temporary COVID-19 Regulations

Published: December 16, 2020

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

On December 14, 2020, Governor Newsom issued Executive Order N-84-20 which, among other things, modified CalOSHA’s emergency COVID-19 regulations.

Background.

On November 30, 2020, CalOSHA’s emergency temporary regulations concerning COVID-19 prevention in places of employment (ETS) went into effect.  Among other requirements, the ETS directed employers to exclude from the workplace for 14 days those employees who have been exposed to COVID-19, reflecting the then-current guidance of the Centers for Disease Control and Prevention (CDC) and the California Department of Public Health (CDPH) on quarantining after being exposed to COVID-19.

However, on December 14, 2020, the CDPH published updated COVID-19 Quarantine Guidance that sets forth new directives, based upon updated CDC guidelines, for when employees exposed to COVID-19 who are asymptomatic may discontinue quarantine.  According to the CDPH’s updated COVID-19 Quarantine Guidance, the following timelines are applicable for quarantine for exposed employees:

  • All asymptomatic close contacts (within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period) may discontinue quarantine after Day 10 from the date of last exposure with or without testing.
  • During critical staffing shortages when there are not enough staff to provide safe patient care, essential critical infrastructure workers in the following categories are not prohibited from returning after Day 7 from the date of last exposure if they have received a negative PCR test result from a specimen collected after Day 5:
    • Exposed asymptomatic health care workers; and
    • Exposed asymptomatic emergency response and social service workers who work face to face with clients in the child welfare system or in assisted living facilities.
  • All exposed asymptomatic contacts permitted to reduce the quarantine period to less than 14 days must:
    • Adhere strictly to all recommended non-pharmaceutical interventions, including wearing face coverings at all times, maintaining a distance of at least 6 feet from others, and the interventions required below, through Day 14.
    • Use surgical face masks at all times during work for those returning after Day 7 and continue to use face coverings when outside the home through Day 14 after last exposure.
    • Self-monitor for COVID-19 symptoms through Day 14 and if symptoms occur, immediately self-isolate and contact their local public health department or healthcare provider and seek testing.

Relevant Provisions of the Executive Order.

Because the public health recommendations and the requirements of the ETS should be consistent in order to protect public health, the Executive Order suspended (replaced) the quarantine/return to work periods for asymptomatic individuals as specified in the ETS with those contained in the CDPH’s COVID-19 Quarantine Guidance, or any applicable quarantine or isolation period recommended or ordered by a local health officer. However, the Executive Order expressly states that the suspension (replacement) shall not apply where an employer prevents a worker who returns to work earlier than permitted under the ETS from satisfying any of the conditions [upon return] specified by the CDPH or a local health officer.

Finally, the Executive Order directs Cal/OSHA to promptly provide public notice if it changes the quarantine or return to work periods in the emergency COVID-19 regulations.

A copy of the Executive Order can be obtained here.

A Deeper Dive into the New Cal/OSHA Temporary Emergency Standards for COVID-19 Prevention

Published: December 7, 2020

by Shauna N. Correia
The Labor & Employment Law Blog

As we wrote on December 3, 2020, an emergency COVID-19 rule was adopted and approved by the California Occupational Safety and Health Standards Board. The regulation contains significant new requirements including a mandatory written “COVID-19 Prevention Program,” paid time off in certain circumstances when a “COVID-19 case” is excluded from the workplace, notice and training requirements, and requires that employers offer testing in some situations.

The emergency standards will remain in effect for 180 days unless renewed, withdrawn or replaced. It applies to all California employers covered by Cal/OSHA (generally, employers with ten or more employees at any time during the year).

This blog summarizes and highlights some of the key provisions (other than the requirement that employers develop a written “COVID-19 Prevention Program” as discussed in our previous blog).