Return of California’s COVID-19 Supplemental Paid Sick Leave

By Andrew J. Sommer and Ashley D. Mitchell

California has just reinstated the COVID-19 specific paid sick leave law that expired at the end of 2020 but this time with a twist.  As we discussed in a blog post last year, California enacted the 2020 COVID-19 Supplemental Paid Sick Leave law to extend benefits to employees not covered by the paid benefits provision of the Families First Coronavirus Response Act (FFCRA).  While the FFCRA’s paid sick leave provision lapsed on December 31, 2020 along with California’s 2020 COVID-19 Supplemental Paid Sick Leave law, California has just passed, effective March 29, 2021, the 2021 COVID-19 Supplemental Paid Sick Leave law extending benefits again with significantly expanded eligibility.

Eligibility Requirements

The 2021 COVID-19 Supplemental Paid Sick Leave law requires all California employers with more than 25 employees to provide COVID-19 related paid sick leave (up to 80 hours) to employees who cannot work or telework due to the reasons discussed below.  This paid leave is in addition to any payment that was provided under the previous COVID-19 Supplemental Paid Sick Leave law expiring on December 31, 2020.  The 2021 COVID-19 Supplemental Paid Sick Leave law does not apply to independent contractors, unlike the previous law, and expands upon the eligibility criteria.  The California Department of Industrial Relations (DIR) has issued 2021 COVID-19 Supplemental Paid Sick Leave FAQs offering detailed guidance on this new law.

Covered employees are now eligible under the 2021 COVID-19 Supplemental Paid Sick Leave law if they are unable to work or telework due to any of the following reasons: 

  • The covered employee is subject to a quarantine or isolation period related to COVID-19, as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace
  • The covered employee has been advised by a healthcare provider to quarantine due to COVID-19, or is experiencing symptoms of COVID-19 and is seeking a medical diagnosis
  • The covered employee is caring for a family member (as defined) who is either subject to a quarantine or isolation period or has been advised by a healthcare provider to quarantine due to COVID-19
  • The covered employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises
  • The covered employee is attending a vaccine appointment or cannot work or telework due to vaccine-related symptoms
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Employment Law Update in D.C., Maryland, Virginia, and Illinois [Webinar Recording]

On March 24th, Daniel C. Deacon and Ashley D. Mitchell presented a webinar regarding an Employment Law Update in D.C., Maryland, Virginia, and Illinois.

CaptureThe District of Columbia, Maryland, and Virginia have enacted or are considering a host of changes that employers need to keep track of in 2021, such as revisions to discrimination laws, wage and hour laws, labor laws, and workplace safety and health regulations.

Illinois employers should be aware of an already existing minimum wage increase that takes effect in 2021, and there are a host of laws that took effect at various points in 2020. Indeed, in 2020, employers were faced with an expanded Illinois Human Rights Act that applies beyond the physical workplace, covers non-employee contractors and protects against discrimination based on perceived (in addition to actual) protected status. There were also special new rules enacted that apply to restaurants, bars and coffee shops, as well as disclosure requirements that will necessitate notifying the Department of Human Rights of adverse judgments in employment discrimination or harassment matters. Finally, the Victims’ Economic Security and Safety Act was amended and the signed “trailer bill” has clarified what employers should do if they wish to prohibit the use of marijuana as part of their workplace drug and alcohol policy.

Participants in this webinar learned: Continue reading

Employment Law Update in D.C., Maryland, Virginia, and Illinois [Webinar]

On Wednesday, March 24th at 1:00 P.M. EST, join Daniel C. Deacon and Ashley D. Mitchell for a webinar regarding an Employment Law Update in D.C., Maryland, Virginia, and Illinois.

CaptureThe District of Columbia, Maryland, and Virginia have enacted or are considering a host of changes that employers need to keep track of in 2021, such as revisions to discrimination laws, wage and hour laws, labor laws, and workplace safety and health regulations.

Illinois employers should be aware of an already existing minimum wage increase that takes effect in 2021, and there are a host of laws that took effect at various points in 2020. Indeed, in 2020, employers were faced with an expanded Illinois Human Rights Act that applies beyond the physical workplace, covers non-employee contractors and protects against discrimination based on perceived (in addition to actual) protected status. There were also special new rules enacted that apply to restaurants, bars and coffee shops, as well as disclosure requirements that will necessitate notifying the Department of Human Rights of adverse judgments in employment discrimination or harassment matters. Finally, the Victims’ Economic Security and Safety Act was amended and the signed “trailer bill” has clarified what employers should do if they wish to prohibit the use of marijuana as part of their workplace drug and alcohol policy.

Participants in this webinar will learn: Continue reading

Things Employers Should Consider as the $15 per hour Minimum Wage Gains Traction

The $15 per hour minimum wage is not a new idea, although a minimum wage increase under the Fair Labor Standards Act has garnered new attention in recent months. Raising the minimum wage was one of President Biden’s campaign promises and both the House and the Senate have re-introduced legislation to raise the federal minimum wage. Some states, like California, Connecticut, Illinois, and New York are already on track to have a $15 per hour minimum wage by 2025. But what does all this mean for employers? According to a recent Congressional Budget Office study increasing the federal minimum wage would raise the wages of at least 17 million Americans. Therefore, employers should begin thinking about how the progressive increase of the minimum wage will impact their resources.

The Fair Labor Standards Act (“FLSA”) dictates the federal minimum wage, rules surrounding overtime pay and hours worked, and recordkeeping requirements. Two types of employers are covered under the FLSA: enterprises and individuals. Enterprises have at least two employees and are (1) those that have an annual dollar volume of sales or business done of at least $500,000 or (2) hospitals and businesses providing medical or nursing care for residents, schools, and preschools, and government agencies. Individuals are employers whose employees are engaged in work that regularly involves interstate commerce. Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools) are FLSA minimum wage and overtime exempt provided they are paid at not less than $684 per week on a salary basis. These salary requirements do not apply to outside sales employees, teachers, and employees practicing law or medicine. This exception is commonly referred to as the white collar exception. Other minimum wage and overtime exemptions include creative professionals, computer employees, and highly compensated individuals.

If the $15 per hour minimum wage legislation passes, employers may consider making hourly employees who would otherwise be FLSA exempt salaried. There are several benefits to be gained if those employees were correctly classified as minimum wage and overtime exempt. First, predictable wages. Hourly employees who work more than 40 hours per week are entitled to 1.5 times their regular rate of pay for each additional hour worked. If the $15 per hour minimum wage passes, that would be an overtime rate of pay of $22.50 per hour. Salaried white collar employees are not subject to the same overtime pay. Second, the elimination of recordkeeping. Employers must keep a record of all hours worked by their hourly employees. For about the past year, many white collar employees have tele-worked due to the ongoing COVID-19 pandemic. Tele-work has made it challenging for employers to keep track of employee hours worked. Whereas before an employee may have used a daily timeclock located inside the office, now employers have had to come up with creative solutions to comply with the FLSA recordkeeping requirement. With many companies predicting that even after the pandemic tele-work may still be available at least one day a week for all white collar employees, correctly classifying white collar employees as exempt by making them salaried eliminates the need to keep track of employees’ working hours.

Employers who do consider changing their white collar employees from hourly to salaried should exercise caution. The U.S. Wage and Hour Division has outlined specific tests for every exempt employee category and employers do not want to run the risk of misclassifying employees as it could result in a lawsuit. Furthermore, employers should make sure that the decision is made equitably so as not to run afoul of other labor and employment laws like Title VII and The Americans with Disabilities Act. Ultimately, the decision of whether to make an otherwise FLSA exempt hourly employee salaried should take into account the employer’s resources and be made with the assistance of legal counsel.

California’s CFRA Expansion Brings Increased Leave Rights

With the new year came a significant expansion of the California Family Rights Act (“CFRA”), which provides up to 12 weeks of unpaid, protected family and medical leave for certain employees. 

Under CFRA, specified employers are prohibited from refusing to grant certain leave requests by employees.  Employees granted a CFRA leave request must be guaranteed employment in the same or a comparable position upon termination of the leave.  CFRA also generally requires employers to maintain and pay for coverage under the employee’s group health plan for the duration of the leave at the level coverage would have been provided if the employee had continued working during the leave.

Under Senate Bill 1383, which went into effect January 1, 2021, private employers covered by CFRA now include any person who directly employs 5 or more employees.  Prior to this expansion, private employers covered by CFRA were only those with 50 or more employees. 

Qualifying Reasons For Leave

Qualified employees may be eligible for up to 12 workweeks of unpaid protected leave during any 12-month period:

1. for the birth of a child of the employee or placement of a child with an employee in connection with the adoption or foster care of the child by the employee;

2. for the employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee;

3. to care for certain family members who have a serious health condition;

4. due to 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.

Covered family members used to include a spouse, domestic partner, parent, minor child, or dependent adult.  Now covered family members also include a child (not just minor child), grandparent, grandchild, and sibling.  Child, as defined, includes a biological, adopted, or foster child, a stepchild, a legal ward, a child of a domestic partner, or person to whom the employee stands in loco parentis.  This definition now includes adult children.  Parent, as defined, includes a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.  A grandchild means a child of the employee’s child and a grandparent means a parent of the employee’s parent.  Sibling includes a person related to another person by blood, adoption, or affinity through a common legal or biological parent.

Given these expanded categories covered by CFRA, such leave may not always run concurrently with the Federal Family and Medical Leave Act (“FMLA”).  Employers will want to carefully track all leave requests to properly comply with both the CFRA and FMLA.

You may also recall that California recently expanded its baby-bonding leave to smaller employers.  Specifically, California’s 2018 New Parent Leave Act (“NPLA”), provided for 12 workweeks of unpaid protected baby-bonding leave for employees working at a worksite in which the employer employs at least 20 employees within 75 miles.  The protections of the NPLA are now included within CFRA, and the separate NPLA has been repealed.

Eligibility for Leave

CFRA still requires an employee to have at least 1,250 hours of service with the employer during the previous 12-month period in order to qualify for leave.

Significantly, employees no longer need to be among 50 employees within 75 miles to qualify for leave; there is now no geographic limitation to eligibility for CFRA leave, so long as the employer has 5 or more employees.

The CFRA expansion also eliminated the so-called “key employee” exception.  Specifically, there is no longer an exception from complying with CFRA for an employee who is a salaried employee and is among the highest paid 10% of the employer’s employees. 

Finally, there is no longer an ability to split the total leave among two parents when both parents of a child are employed by the same employer.  Now, the total amount of leave would need to be granted to each such parent.  Employers can no longer require parents split the leave in any way.

A Note About Pregnancy Leave

Although the CFRA expansion touches on leave for baby-bonding, the legislation specifies that existing pregnancy, childbirth, and related medical condition leave provisions are separate and distinct protections from CFRA protections.  By definition, use of CFRA leave to care for an employee’s own serious health condition does not include any leave taken for disability on account of pregnancy, childbirth, or related medical conditions.

Small Employer Family Leave Mediation Pilot Program

Under Government Code Section 12945.21, the California Department of Fair Employment and Housing (“DFEH”), the state agency that enforces CFRA, is tasked with creating a small employer family leave mediation pilot program for employers with between 5 and 19 employees.  Under the pilot program, an employer may, within 30 days of receipt of a right-to-sue notice alleging a violation of CFRA, request all parties to participate in the DFEH’s dispute resolution division.  The DFEH is supposed to include in a right-to-sue notice information about the right to participate in the mediation pilot program.  If an employer or employee requests such mediation, the employee cannot file suit under CFRA until the mediation is complete.  An employee’s statute of limitations, including for all related claims not under CFRA, are tolled upon receipt of a request to participate in the DFEH’s dispute resolution division until mediation is complete.  Section 12945.21 remains in effect until January 1, 2024.

Next Steps for Employers

Now is a good time to revisit your handbooks, leave policies and training to make sure your company’s policies and procedures comply with the expanded CFRA requirements.  The DFEH has added updated facts sheets, required posters, and other leave-related information on its website.  We will also keep an eye on the CFRA regulations in effect.  Employers with questions about how to comply with the new requirements or how to navigate tricky leave questions are encouraged to consult with employment counsel.

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Conn Maciel Carey LLP
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Announcing Conn Maciel Carey’s 2021 Labor and Employment Webinar Series

2021 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As President Trump’s Administration comes to an end, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.  This complimentary webinar series will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.

Conn Maciel Carey’s complimentary 2021 Labor and Employment Webinar Series, which includes (at least) monthly programs put on by attorneys in the firm’s national Labor and Employment Practice, is designed to give employers insight into legal labor and employment developments.

​To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you. If you missed any of our past programs from our annual Labor and Employment Webinar Series, click here to subscribe to our YouTube channel to access those webinars.


2021 Labor & Employment Webinar Series – Program Schedule

California Employment Law Update for 2021

Wednesday, January 20th

Marijuana, Drug Testing and Background Checks

Tuesday, July 13th

COVID-19 Vaccine: What Employers Need to Know

Thursday, February 11th

Employee Misconduct Defense & Employment Law

Wednesday, August 11th

Employment Law Update in D.C, MD, VA and Illinois

Wednesday, March 24th

Employee Handbooks, Training and Internal Audits

Tuesday, September 21st

Withdrawal Liability Pensions

Wednesday, April 14th

NLRB Update

Tuesday, October 19th

ADA Website Compliance Issues –  Best Strategies for Employers

Tuesday, May 18th

Avoiding Common Pitfalls: Non-Compete, Trade Secrets and More!

Wednesday, November 10th

What to Expect from DOL Under the Biden Admin.

Wednesday, June 16th

Recap of Year One of the Biden Administration

Tuesday, December 14th

   

See below for the full schedule with program descriptions, dates, times and links to register for each webinar event.

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[Client Alert] New California Employment Laws for 2021 Will Leave Their Mark

By Andrew SommerFred Walter, and Megan Shaked

2020 has been another banner year for California employment laws, with legislation and Cal/OSHA rulemaking associated with COVID-19 prevention and reporting taking center stage.  In our annual update of new employment laws impacting California private sector employers, we lead off with California’s COVID-19 related laws, given their far-reaching impact on the state’s workforce during the pandemic as employers continue to implement measures to prevent the spread of COVID-19 in the workplace.  We have also addressed other substantive legislative developments, particularly in the areas of wage and hour law and reporting of employee pay data.  Unless otherwise indicated, these new laws will take effect on January 1, 2021.

COVID-19 Related Rulemaking and Legislation

Temporary Emergency COVID-19 Prevention Rule Not to be outdone by Virginia OSHA, Oregon OSHA or Michigan OSHA, Cal/OSHA adopted an onerous COVID-19 specific temporary emergency regulation effective November 30, 2020.  Below is a detailed summary of how we got here, as well as an outline of what the rule requires.

On November 19, 2020, the California’s Occupational Safety and Health Standards Board (Standards Board) voted unanimously to adopt an Emergency COVID-19 Prevention Rule following a contentious public hearing with over 500 participants in attendance (albeit virtually).  The Emergency Rule was then presented to California’s Office of Administrative Law for approval and publication.  The Rule brings with it a combination of requirements overlapping with and duplicative of already-existing state and county requirements applicable to employers, as well as a number of new and, in some cases, very burdensome compliance obligations.

The Standards Board’s emergency rulemaking was triggered last May with the submission of a Petition for an emergency rulemaking filed by worker advocacy group WorkSafe and National Lawyers’ Guild, Labor & Employment Committee.  The Petition requested the Board amend Title 8 standards to create two new regulations Continue reading

Is Federal Marijuana Reform on the Horizon?

Fifty years after the Controlled Substances Act was passed and marijuana was deemed illegal under federal law, the legality of marijuana is finally being addressed by Congress, as the U.S. House of Representatives is scheduled to vote this month on a bill that seeks to end the federal law that prohibits marijuana use – a vote on the most comprehensive marijuana reform legislation in U.S. history that could have sweeping implications.

Specifically, the Marijuana Opportunity Reinvestment and Expungement Act (aka the “MORE Act”) intends to de-schedule cannabis from the list of Schedule I controlled substances under the Controlled Substances Act.  The Act also intends to expunge many convictions, tax cannabis sales at 5%, invest in grant programs with a heavy focus on social equity, and provide cannabis businesses access to Small Business Administration loans.

The vote in the House arrives roughly a month after five states — New Jersey, Arizona, Montana, South Dakota and Mississippi — voted on Election Day to legalize recreational or medical cannabis. Cannabis is already legal, to some degree, in most U.S. states, and the support for reform is only increasing.  Notably, every single marijuana reform measure placed on state ballots in 2020 passed, representing a continuation of the state-level reform movement that has consistently expanded in election after election.  As we move into 2021, medical marijuana is now legal in 34 states and the District of Columbia and recreational marijuana is legal in 15 states and the District of Columbia. Staunch activism for marijuana reform also continues to grow in several other states where legislation is expected to be introduced within the next year, including New York, New Mexico, Rhode Island, Missouri, North Dakota, and Florida.

While the MORE Act is expected to pass the House with some bipartisan support, it remains unlikely that Continue reading

New COVID-Related State Leave Laws Fill The Void Left By Federal Paid Leave Laws

As the U.S. is entering the third wave of COVID-19 as virus cases continue to rise nationwide, employers should not only be aware of their obligations under the federal Families First Coronavirus Response Act, but also recent state laws such as California’s COVID-19 Supplemental Paid Sick Leave and New York State’s COVID-19 Leave Law.

As we have discussed in a prior blog post, the Families First Coronavirus Response Act (FFCRA) requires private employers with 500 or fewer employees to provide paid sick leave generally when an employee is unable to work because the employee is experiencing COVID-19 symptoms or has a bona fide need to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19. 

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What Employers Need to Know About Mandatory COVID-19 Vaccines

With the availability of a safe, effective COVID-19 vaccine edging closer and closer, employers understandably have a number of questions regarding their role in the workplace – whether and when they can require a vaccination, what exceptions are required in a mandatory vaccination program, and whether they should require (as opposed to encourage and facilitate) the COVID-19 vaccine for employees once it becomes available.  This summer, the World Health Organization reported that nearly 200 potential vaccines were currently being developed in labs across the world, and as of mid-October, disclosed that more than 40 had advanced to clinical stage testing on humans.  Drug manufacturers estimate that a vaccine will be ready and approved for general use by the end of this year, although logistically not ready for widespread distribution until mid-2021.  Indeed, just over the past couple of weeks, Pfizer and Moderna have made promising announcements regarding the results of their clinical trials.  Namely, on Monday, November 9, 2020, Pfizer and BioNTech announced that a vaccine candidate against COVID-19 achieved success in the firm interim analysis from the Phase 3 study.  The vaccine candidate was found to be more than 90% effective in preventing COVID-19 in participants without evidence of prior SARS-CoV-2 infection in the first interim efficacy analysis.  According to the announcement, submission for Emergency Use Authorization (EUA) to the U.S. Food and Drug Administration (FDA) is planned for soon after the required safety milestone is achieved, which is currently expected to occur in the third week of November.  Additionally, as reported by the National Institutes of Health (NIH) on November 16, 2020, there have been promising interim results from a clinical trial of a NIH-Modern COVID-19 vaccine.  An independent data and safety monitoring board (DSMB) reported that the vaccine candidate was safe and well-tolerated and noted a vaccine efficacy rate of 94.5%.  Accordingly, as the reality of a vaccination nears, employers are inquiring whether they can and should mandate the vaccine for their employees.

  1. Can Employers Require Employees to Take the COVID-19 Vaccine?

As a threshold matter, it should be noted that, according to a member of the federal advisory panel on immunizations that will be making recommendations to the CDC on who should get the first doses, vaccines authorized under the FDA’s emergency use authority, as these COVID-19 vaccinations will be at the start, cannot be mandated.  Any COVID-19 vaccine brought to market under an EUA instead of the normal non-emergency approval process will, by necessity, lack long term safety data.  Once a vaccine receives an EUA from FDA, FDA has authorized the vaccine for use according to the terms of the EUA.

In general though, employers can require vaccination as a term and condition of employment, but such practice is not without limitations, nor is it always recommended.  Although the issue is only now coming to the forefront of our national conscience, mandatory vaccinations in the workplace are not new, and have been particularly prevalent among healthcare providers.  Some variability exists under federal law and among federal agencies, but for the most part, mandatory vaccination programs are permissible, as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation requests under the Americans with Disabilities Act (ADA).

OSHA has long taken the position that employers can require employees to take flu and other vaccines, but emphasizes that employees “need to be properly informed of the benefits of vaccinations.”  In the healthcare industry, for example, mandatory vaccination programs for employees are common.  Indeed, several states have laws that require healthcare employers to offer the vaccine or to ensure that employees receive it (with certain exceptions).  The CDC has long recommended that all healthcare workers get vaccinated, including all workers having direct and indirect patient care involvement and exposure.

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