Welcome to the Weintraub Resources section. Here, you can find our Blogs, Videos, and Podcasts, in which Weintraub attorneys regularly provide insights and updates on legal developments. You can also find upcoming Weintraub Events, as well as firm and client News.

Governor Newsom Announces the Gradual Beginning of Stage 2 of California’s Re-Opening Plan

On May 7, 2020, Governor Newsom announced the plan to gradually move into Stage 2 of the State’s Re-opening Plan beginning May 8, 2020.  In addition to the Governor’s announcement in his press conference, the California Department of Public Health issued industry-specific guidance and checklists for phased reopening under the State’s “Resilience Roadmap.”

Under the current State Shelter-in-Place Order, only essential businesses and workplaces are permitted to be open.  However, the State says that as of May 8, 2020, the following businesses can open with modifications:

  • Curbside retail, including but not limited to: Bookstores, jewelry stores, toy stores, clothing stores, shoe stores, home and furnishing stores, sporting goods stores, antique stores, music stores, florists. Note: this will be phased in, starting first with curbside pickup and delivery only until further notice.
  • Supply chains supporting the above businesses, in manufacturing and logistics sectors.

Although there is no specific date provided yet, the State says that the following businesses can open later in Stage 2:

  • Destination retail, including shopping malls and swap meets.
  • Personal services, limited to: car washes, pet grooming, tanning facilities, and landscape gardening.
  • Office-based businesses (telework remains strongly encouraged).
  • Dine-in restaurants (other facility amenities, like bars or gaming areas, are not permitted).
  • Schools and childcare facilities.
  • Outdoor museums and open gallery spaces.

Regardless of when a business is permitted to open (with modifications), the State is requiring all facilities to first perform a detailed risk assessment and implement a site-specific protection plan.

Finally, Governor Newsom and the Department of Public Health recognize that some communities may be able to move through Stage 2 faster and thus are implementing a system in which the counties can certify that they have made greater progress in meeting readiness criteria established by the California Department of Public Health. More information about this State-county system is expected to be released by the State on May 12, 2020.

For more information about the latest developments on the phased-reopening of California via the State’s Resilience Roadmap, go to https://covid19.ca.gov/roadmap/#guidance.

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

California Employers Likely Immune To Employee COVID-19 Lawsuits, But More Susceptible To COVID-19 Workers-Compensation Claims

Recent news reports, like this one from the Los Angeles Times, indicate that Congress is hotly debating a proposed law to immunize employers from lawsuits alleging that their workers contracted COVID-19 illness on the job.  While business owners in California may suffer headaches or congestion from other types of lawsuits related to COVID-19 in the workplace, exposure to employee lawsuits of this kind is probably not a feverish worry.

That is because, with very few exceptions, California employees who suffer a work-related injury or illness cannot sue their employer in civil court.  Instead, such employees must pursue relief through a workers-compensation claim.

Even though there probably won’t be a rash of employee lawsuits related to COVID-19, California employers should anticipate an increase in workers-compensation claims related to that coronavirus.  Such claims typically would assert that an employee was exposed to the contagion on the job and became ill, unable to work, and in need of medical attention and treatment.

Indeed, California Gov. Gavin Newsom this week mandated a presumption that an employee’s COVID-19-related illness is work-related under certain circumstances.  In Executive Order N-62-20, signed on May 6, 2020, Gov. Newsom directed that “[a]ny COVID-19-related illness of an employee shall be presumed to arise out of … the employment for purposes of awarding workers’ compensation benefits if [specified] requirements are satisfied.”

Under that executive order, the presumption only arises if the employee tested positive for, or was diagnosed by a qualified physician as having, COVID-19 within 14 days after performing work directed by the employer at the employee’s place of employment.  The presumption does not arise if the employee worked from home during that timeframe, or if he or she was otherwise not on the job on or after March 19, 2020.

Just because such a presumption arises, that does not mean the source of the employee’s infection is beyond dispute.  On the contrary the executive order confirms that the presumption “is disputable and may be controverted by other evidence.”  Moreover, if “an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits [must] be used and exhausted before any [workers-compensation] temporary disability benefits … are due and payable.”

Of course, employees who file such claims may also allege that their illness was caused by the employer’s serious and willful misconduct.  If a worker were to succeed on such a claim, it could result in the “amount of compensation otherwise recoverable [being] increased [by] one-half” under section 4553 of the California Labor Code.

To prevail on such a claim, the infected employee would have to prove that the employer maliciously (not just negligently) engaged in such misconduct.  Simply opening up for business after the government said it was ok to do so, by itself, almost surely wouldn’t amount to serious and willful misconduct – but opening sooner than that might.  Employers also may face greater risk of liability under such a claim if they maliciously (not just carelessly) fail to provide necessary protective gear or enforce social-distancing or sanitary guidelines.

Therefore, absent some unanticipated development, any presumed action that Congress may take in passing a federal law to shield employers from such lawsuits probably won’t have much of an impact in the Golden State.  Still, employers here should be mindful of the new presumption that an employee’s COVID-19 infection may be an industrial illness covered by workers-compensation laws.  To inoculate against potential claims that a COVID-19 infection was caused by serious and willful misconduct, California employers should consult with competent legal counsel to prepare for reopening their business in the coming weeks and months.

Finally – SBA Guidance on an Employer’s PPP Loan Forgiveness When Employees Refuse to Return to Work  

On May 3, 2020, the SBA updated its FAQs regarding the Paycheck Protection Program (“PPP”) under the CARES Act.  Among other things, the updated FAQs finally addressed this issue:  What happens to an employer’s ability to have its PPP loan forgiven if employees refuse to return from layoff and thus an employer cannot meet the required full-time employee ratio in connection with the required 75% expenditure of loan proceeds on “payroll costs” during the 8-week Coverage Period?

The SBA’s FAQ No. 40 provides expressly:

40. Question: Will a borrower’s PPP loan forgiveness amount (pursuant to section 1106 of the CARES Act and SBA’s implementing rules and guidance) be reduced if the borrower laid off an employee, offered to rehire the same employee, but the employee declined the offer?

Answer: No. As an exercise of the Administrator’s and the Secretary’s authority under Section 1106(d)(6) of the CARES Act to prescribe regulations granting de minimis exemptions from the Act’s limits on loan forgiveness, SBA and Treasury intend to issue an interim final rule excluding laid-off employees whom the borrower offered to rehire (for the same salary/wages and same number of hours) from the CARES Act’s loan forgiveness reduction calculation. The interim final rule will specify that, to qualify for this exception, the borrower must have made a good faith, written offer of rehire, and the employee’s rejection of that offer must be documented by the borrower. Employees and employers should be aware that employees who reject offers of re-employment may forfeit eligibility for continued unemployment compensation.

While the SBA has not yet finalized their rules, this is good news for those employers who were lucky enough to obtain their PPP loan during the first round of government funding but who have experienced a number of employees who refuse to return to work.  Employers in this situation are cautioned, however, to be sure that the written offer of rehire (or recall to a furloughed employee) is clearly documented, that they can prove the employee received the written offer, and that they have documentation of the employee’s decline of the offer.  This documentation will be needed when applying for loan forgiveness at a future date.

A full copy of the SBA’s May 3, 2020 version of its FAQs regarding the PPP can be obtained at:  https://home.treasury.gov/system/files/136/Paycheck-Protection-Program-Frequently-Asked-Questions.pdf

The Labor and Employment attorneys at Weintraub Tobin continue to wish you and yours good health during this very unsettling time.  If we can assist you in any of your employment law needs, feel free to reach out to one of us.

Webinar: Insurance Coverage for COVID-19 Losses – Five Things to Know and Do

  • When: May 6, 2020

On May 6, 2020, Weintraub attorneys Charles Post and James Kachmar held a straightforward discussion of insurance coverage issues and potential insurance company responses to business interruption and other claims arising from COVID-19. This program discussed the peculiarities of common policy language and coverage issues; provided a preview of possible responses from insurance companies to such claims; and explained pending legislation and court cases regarding insurance issues due to COVID-19. The webinar was focused on educating small businesses in evaluating, preparing, and possibly resolving claims with their insurance companies for COVID-19 losses.

A recording of this webinar can be viewed on the Weintraub Tobin YouTube page. Please keep in mind that this is a fluid situation and information is constantly being updated. We recommend that you check with your professional advisors to make sure you have the most current information.

Webinar: Employment Issues Upon Re-Entry to the Workplace

  • When: Apr 30, 2020

The COVID-19 pandemic has changed the workplace landscape.  While the anticipated re-opening of the economy is on the horizon, employers must be aware of a number of employment issues when employees begin to re-enter the workplace.  This webinar addresses the most common questions employers are currently asking about what is and is not required, allowed, or recommended when bringing employees back to work.  We will provide an overview of the following topics during this free webinar:

  • Conflicting Shelter Orders – Which one applies and which order do we follow to bring employees back to work?
  • What can an employer do if employees refuse to return to the worksite?
  • May a furloughed employee choose to stay on unemployment instead of returning to work?
  • Return-to-Work Social Distancing Policies and Protocols – Are they required or recommended?
  • What are the OSHA and CDC guidelines for maintaining workplace safety and reducing the spread of COVID-19?
  • What About Employee Privacy – Can an employer obtain medical information or screen employees before they enter the worksite?
  • What are the EEOC and DFEH guidelines regarding reasonable accommodations for employees who may be at risk if they return to the worksite?
  • Do OSHA reporting and workers’ compensation benefits apply if an employee contracts COVID-19 at work?
  • Are employees still eligible to take emergency paid sick leave or emergency FMLA leave under the FFCRA once the shelter orders are lifted?
  • What sick pay and statutory leave benefits are available to laid off employees who are rehired?
  • What policies should employers review and update based on the impact of COVID-19?

This webinar was presented live on April 30, 2020.  You can view a recording of the webinar on our YouTube page.  Please keep in mind that this is a fluid situation and information is constantly being updated. We recommend that you check with your professional advisors to make sure you have the most current information.

EEOC Updates its Guidance & FAQs Regarding COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws  

The EEOC has updated its COVID-19 Guidance by adding a number of new FAQs to address issues related to the anticipated re-entry into the workplace.  The new FAQs discuss things like: an employer’s right to screen employees before entering the workplace to avoid a “direct threat” to the health and safety of employees; documentation to support an employee’s request for an accommodation; and “undue hardship” considerations when denying an accommodation based on the impact of COVID-19 on the business.  Below is a list of the new FAQs.  The complete EEOC’s Guidance and FAQs can be found here.

D.5. During the pandemic, if an employee requests an accommodation for a medical condition either at home or in the workplace, may an employer still request information to determine if the condition is a disability? (4/17/20)

Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee has a “disability” as defined by the ADA (a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment).

4th UPDATE: DOL Again Updates Question & Answers Page for FFCRA

We have previously written about the US Department of Labor issuing a Question & Answers webpage, and subsequently updated it, to address numerous issues arising out of the passage of the Families First Coronavirus Response Act (“FFCRA”). (Click here, here and here.) On April 6, 2020, the DOL again updated the “Questions and Answers” webpage, adding 9 new questions and answers (##80-88) that largely clarify prior guidance from the Department. Here is a summary of the issues addressed by the DOL’s fourth update to the Q&A page:

For Employers:

  • Clarifying the manner for calculating the number of hours of paid sick leave and expanded family and medical leave due an employee who works irregular hours. (##80-81)
  • Providing a detailed explanation as to how to compute an employee’s average rate of pay for purposes of FFCRA, including those employees on a fixed salary each workweek. (##82-83)
  • Allowing employers to use rounding when computing the number of hours of sick leave due provided that employers do so consistently among all employees and in accordance with typical time increments (i.e. if employer general uses quarter-hour increments, employer may use quarter-hour increments for purposes of rounding here). (#84).
  • Stating that an employer must only use one six-month period of time (calculated from when the employee first takes FFCRA leave) for determining the regular rate of pay rather than doing a six-month calculation each time an employee takes FFCRA leave if it is intermittent. (#85)
  • Explaining the interplay between paid sick leave under the FFCRA with employer-provided leave plans, specifically whether an employer can require an employee to take employer-provided leave before taking FFCRA leave. (#86)

For Employees:

  • Clarifies that a “shelter in place” or “stay home” order from a federal, state or local agencies qualifies as a quarantine or isolation order for purposes of FFCRA leave, provided the employer has work for the employee and the “shelter in place” or “stay home” order prevents the employee from performing the work, either in person or via telework. (#87)
  • Explains that an employee is entitled to the full amount of unpaid leave due to them under the FFCRA, instead of just the federal minimum wage of $7.25 per hour, if the Department is required to bring an enforcement action on their behalf against their employer for violating the FFCRA. (#88)

California employers should continue to monitor our blog for future updates concerning the FFCRA and other employment developments as a result of the COVID-19 pandemic. We also advise employers to seek legal advice to determine whether the FFCRA applies to their business, and if so, what steps to take to ensure compliance.

3rd UPDATE: DOL Again Updates Questions & Answers Page for FFCRA

As previously advised, the US Department of Labor has issued a Question & Answers webpage, and subsequently updated it, to address numerous issues arising out of the passage of the Families First Coronavirus Response Act (“FFCRA”. (Click here and here.) The DOL updated the “Questions and Answers” webpage again today, adding 20 new questions and answers (##60-79). These updated Questions and Answers primarily address issues for employees regarding FFCRA leave but include some questions directed towards employers such as computing leave pay for seasonal workers with irregular schedules, employee counts for staffing agencies and the DOL 30-day stay of enforcement actions for FFCRA violations.

DOL’s Informational Webinar re FFCRA Compliance Goes Live

Earlier this week, the U.S. Department of Labor announced that it would be posting an informational webinar regarding compliance issues with the recently-enacted Families First Coronavirus Response Act (“FFCRA”). That webinar, which provides information regarding the FFCRA for both employers and employees went live today and can be accessed at:  https://dolwhd.cosocloud.com/pawkgwfawza0/?proto=true. The DOL’s Wage & Hour Division also distributed Power Point slides to accompany the webinar, which can be accessed here.

California employers should continue to monitor our blog for future updates concerning the FFCRA and other employment developments as a result of the COVID-19 pandemic. We also remind employers that they should seek legal advice to determine whether the FFCRA applies to their business, and if so, what steps to take to ensure compliance.

The IRS FAQs Provide Guidance on Employee Documentation/Information to Support FFCRA Leave

n March 31, 2020, the IRS issued 66 FAQs providing guidance to employers in connection with the payment of, and tax credits for, emergency paid sick leave (E-PSL) and emergency FMLA leave (E-FMLA) under the Families First Coronavirus Response Act (“FFCRA”).  Among other things, the FAQs answered a very important question that the DOL didn’t (instead, in its FAQ 15, the DOL essentially deferred to the IRS).  The important question is: what documentation or information can employers require employees to submit to support their request for E-PSL or E-FMLA?

IRS FAQ No. 44 states expressly:

  1. What information should an Eligible Employer receive from an employee and maintain to substantiate eligibility for the sick leave or family leave credits?

An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:

  1. The employee’s name;
  2. The date or dates for which leave is requested;
  3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
  4. A statement that the employee is unable to work, including by means of telework, for such reason.

In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

The IRS FAQs provide other useful information about determining the amount of the tax credit for qualified sick leave wages; determining the amount of allocable qualified health plan expenses; how to claim the credits; periods of time for which credits are available; and more.  You can read the full IRS FAQs here.

The Labor and Employment attorneys as Weintraub Tobin continue to wish you and your families good health during these difficult times.  Please reach out to any of us if we can assist you with your employment law needs.