Additional Guidance The U.S. Department of Labor has provided additional guidance for employers in its Families First Coronavirus Response Act (“FFCRA”) Questions and Answers. The guidance seeks to clarify many questions for employers with respect to complying with the FFCRA and its provisions for expanded FMLA rights and Emergency Paid Sick Leave. Key Takeaways for…

NEW: Effective Date of the Families First Coronavirus Response Act

The U.S. Department of Labor has announced that the Families First Coronavirus Response Act ("FFCRA"), will go into effect on April 1, 2020.

The FFCRA includes provisions for expanded leave under the Family and Medical Leave Act and Emergency Paid Sick Leave.

Read the U.S. Department of Labor FFCRA FAQs HERE.

Employers should be sure to post the mandatory notice poster by April 1, 2020 and to contact experienced employment counsel with any questions about implementing the leave provisions of the FFCRA.

The U.S. Department of Labor “Model Notice” In accordance with the newly passed Families First Coronavirus Response Act (“FFCRA”), the U.S. Department of Labor has released a Model Notice today for employers to use in compliance with the FFCRA. The FFCRA mandates that all employers post and keep posted, in conspicuous places on the premises of the…

California "Safer at Home" Orders

The COVID-19 pandemic is a global emergency that is unprecedented. Starting at 11:59 p.m. on Thursday, March 19, 2020 and ending on April 19, 2020, the State of California, Los Angeles City, Los Angeles County, the City of Pasadena, and the City of Long Beach are ordering new “Safer at Home” stay-at-home restrictions on Californians, businesses and activities. We will address the City of Los Angeles and County of Los Angeles Orders in this update.

The Safer at Home orders call for residents to isolate themselves in their residences, whenever possible, subject to certain exceptions. “With this virus, we are safer at home.” The orders call for all “non-essential businesses” to cease operation and for all residents to stay at home when not participating in “essential activities”. On the occasions that residents are outside of their home for necessary tasks, residents are urged to stay at least six feet away from others and to engage in safe practices to limit potential exposure to COVID-19.

Each order referenced above may be viewed below:

The City and County of Los Angeles

The City of Los Angeles and the County of Los Angeles “Safer at Home” Orders provide that people may lawfully leave their residence while the order is in effect only to engage in essential activities (the City of Los Angeles Order only) or essential businesses (both Orders).

The Orders allow for a 24-hour period following the effective date, or until 11:59 p.m. on Friday, March 20, 2020, to allow employees and business owners to access their workplaces to gather belongings, so long as social distancing requirements are followed. Such workplaces shall remain closed to the public in accordance with the Orders.

Essential Businesses Applicable to both the City and the County of Los Angeles (non-exhaustive and subject to certain limitations or variations)

  • City/County government services such as police stations, fire stations, jails, courts, garbage/sanitation, public transportation, water, power and gas utilities, public works construction including construction of housing, airport and port operations.
  • All healthcare operations, including hospitals, clinics, dentists, pharmacies, pharmaceutical and biotechnology companies, medical and scientific research, laboratories, healthcare suppliers, home healthcare services providers, veterinary care providers, mental health providers, physical therapists and chiropractors, cannabis dispensaries, or any related and/or ancillary healthcare services, manufacturers and suppliers. Healthcare operations does not include fitness and exercise gyms and similar facilities.
  • Grocery stores, water retailers, certified farmers’ markets, farm and produce stands, supermarkets, convenience stores, warehouse stores, food banks and other establishments engaged in the retail sale of canned food, dry goods, fresh fruits and vegetables, pet supply, fresh or frozen meats, fish, and poultry, any other household consumer products (such as construction supplies, cleaning and personal care products).
  • Food cultivation, including farming, livestock, and fishing.
  • Organizations and businesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals (including gang prevention and intervention, domestic violence, and homeless services agencies).
  • Newspapers, television, radio, magazine, podcast and other media services.
  • Gas service stations, auto supply, mobile auto repair operations, auto repair shops (including, without limitation, auto repair shops that operate adjacent to or otherwise in connection with any used or retail auto dealership), bicycle repair shops and related facilities.
  • Banks, credit unions, financial institutions and insurance companies.
  • Hardware and building supply stores, and nurseries.
  • Plumbers, electricians, exterminators, custodial/janitorial workers, handyman services, funeral home workers and morticians, moving services, HVAC installers, carpenters, landscapers, gardeners, property managers, private security personnel and other service providers who provide services to maintain the safety, sanitation, and essential operation to properties and other essential activities discussed in the order.
  • Businesses providing mailing and shipping services, including post office boxes.
  • Educational institutions -- including public and private K-12 schools, colleges, and universities -- for purposes of facilitating distance learning or performing essential functions provided that social distancing of six-feet per person is maintained to the greatest extent possible.
  • Laundromats, dry cleaners, and laundry service providers.
  • Restaurants and retail food facilities that prepare and offer food to customers, but only via delivery service, to be picked up, or drive-thru.
  • Schools and other entities that typically provide free food services to students or members of the public may continue to do so under this Order on the condition that the food is provided to students or members of the public on a pick-up and carry out basis only.  Schools and other entities that provide food services under this exemption shall not permit the food to be eaten at the site where it is provided, or any other gathering site.
  • Cafeterias, commissaries, and restaurants located within hospitals, nursing homes, or similar facilities are also exempt from this Order.  Social distancing shall be maintained at a distance of at least six feet away from others.
  • Businesses that supply products needed for people to work from home.
  • Businesses that supply other essential businesses with the support, services, or supplies necessary to operate, provided that strict social distancing is maintained.
  • Businesses that ship or deliver groceries, food, beverages or goods directly to residences or businesses.
  • Airlines, taxis, ride sharing services, and other private transportation services providing transportation services necessary for essential activities and other purposes expressly authorized in this Order.
  • Home-based care for disabled persons, seniors, adults, or children.
  • Residential facilities and shelters for disabled persons, seniors, adults, and children.
  • Professional services, such as legal, payroll or accounting services, when necessary to assist in compliance with legally mandated activities.
  • Childcare facilities providing services that enable employees exempted in the order to work as permitted, and subject to mandatory conditions.
  • Hotels, motels, shared rental units and similar facilities.
  • Military/Defense Contractors/FFRDC (Federally Funded Research and Development Centers), subject to certain provisions.

Essential Activities (the City of Los Angeles Order only)

Essential activities exempted by the City of Los Angeles Order include:

  • visiting a health care professional
  • visiting a veterinary care professional
  • obtaining medical supplies or medication
  • obtaining grocery items (including, without limitation, canned food, dry goods, fresh fruits and vegetables, pet supplies, fresh or frozen meats, fish, and poultry, any other household consumer products and products necessary to maintain the safety and sanitation of residences and other buildings) for their household or to deliver to others, or for legally mandated government purposes
  • travel related to:
    • (a) providing care for minors, the elderly, dependents, persons with disabilities, or other vulnerable persons;
    • (b) returning to one’s place of residence from outside the City;
    • (c) travelling to one’s place of residence located outside the City;
    • (d) compliance with an order of law enforcement or court shall be exempt from this Order; or
    • (e) legally mandated government purposes.

Persons engaging in these essential activities shall maintain reasonable social distancing practices. This includes maintaining a distance of at least six feet away from others, frequently washing hands with soap and water for at least twenty seconds or using hand sanitizer, covering coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands.

The Newly Passed Families First Coronavirus Response Act

Last week, the House introduced HR6201, the Families First Coronavirus Response Act (the “Act”), in response to the coronavirus outbreak.

Yesterday, March 18, 2020, the Senate approved the legislation and the President signed the legislation into law. The Act will take effect “not later than 15 days” from yesterday’s date and will expire on December 31, 2020. As information continues to develop, we will provide further updates.

Among other things, the Act expands employee leave rights under the Family and Medical Leave Act (“FMLA”) and provides Emergency Paid Sick Leave as follows:

Emergency Family and Medical Leave Act

Eligibility 

The Act extends FMLA benefits to eligible employees of a covered employer who, due to a public health emergency that has been declared by a Federal, State or local authority with respect to COVID-19 are unable to work (or telework) due to a need for leave to care for the employee’s child (under 18 years of age) whose school or place of care has been closed, or whose childcare providers are unavailable.

Under the new law, emergency family and medical leave applies to:

  • A “covered employer” who has fewer than 500 employees (there is no 50 employee minimum, as is required with typical FMLA).
  • An “eligible employee” who has been employed for at least 30 calendar days by the employer.

Providing the Leave 

Employees may take up to 12 weeks of leave for this purpose, as follows:

  • The first 10 days of such leave may be unpaid. However, an employee may elect (but is not required) to use any accrued vacation, personal leave, or sick leave during this time period.
  • For the subsequent days of the leave, an employer shall provide paid leave for each day of leave thereafter, up to $200 a day and $10,000 in the aggregate.
    • Paid leave shall be equal to at least two-thirds of an employee’s regular rate of pay and for the number of hours the employee would otherwise be normally scheduled to work.
    • Where an employee’s schedule varies each week and the employer cannot determine with certainty the number of hours the employee would have worked if the employee had not gone on leave, the employer may calculate the paid leave based on the average number of hours that the employee was scheduled per day over the 6 month period immediately preceding the date on which the employee requests leave; or
    • If the employee has not worked for the employer for the preceding 6-month period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

Job Reinstatement

An employee who takes FMLA under this Act must be reinstated to the position held at the time the employee went on leave UNLESS:

  • The employer has fewer than 25 employees; and
  • The position held by the employee at the time the employee went on leave no longer exists due to economic conditions or other changes in the operating conditions of the employer that affect employment and that are caused by the public health emergency during the employee’s leave; and
  • The employer makes reasonable efforts to restore the employee to an equivalent position, BUT if the employer cannot restore the employee to an equivalent position, the employer must continue to make reasonable efforts during the following 1-year period to contact the employee if an equivalent position does become available.

Possible Small Business Exemption

Although the Act itself does not provide for a small business exemption, the Act grants authority to the Secretary of Labor to exempt small businesses with fewer than 50 employees from the requirements of the Emergency Family and Medical Leave Expansion Act. More information is anticipated in this regard in the coming days.

Healthcare Providers and Emergency Responders

An employer of healthcare providers or emergency responders may elect to exclude such employee from the provisions of the Emergency Family and Medical Leave Expansion Act.


Emergency Paid Sick Leave Act

Eligibility and Coverage 

The Act further requires an employer who employs fewer than 500 employees, to provide each employee with two weeks of emergency paid sick leave, at the employee’s regular rate of pay, if the employee is unable to work (or telework) due to a need for leave because the employee:

  1. Is subject to a Federal, State or local quarantine or isolation order related to COVID-19;
  2. Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. Is caring for an individual who is subject to a Federal, State or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  5. Is caring for the employee’s child whose school or place of care has been closed, or whose childcare provider is unavailable, due to COVID-19 concerns; or
  6. Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

For reasons 1 through 3: emergency paid sick leave shall be paid up to $511 a day and $5,110 in the aggregate.

For reasons 4 through 6: emergency paid sick leave shall be calculated as two-thirds of the employee’s regular rate of pay, up to $200 a day and $2,000 in the aggregate.

Calculating Emergency Paid Sick Leave

The amount of paid sick leave is calculated as 80 hours for full-time employees, and for part-time employees, as the average number of hours worked over a two-week period. Emergency paid sick leave does not carry over from year to year.

Where an employee’s schedule varies each week and the employer cannot determine with certainty the number of hours the employee would have worked if the employee had not gone on leave, the employer may calculate such paid leave based on the average number of hours that the employee was schedule per day over the 6 month period immediately preceding the date on which the employee requests such leave.

If the employee has not worked for the employer for the preceding 6-month period, the amount of leave shall be based on the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

Emergency Paid Sick Leave terminates upon the employee’s next scheduled workday immediately following the end of the need for emergency paid sick leave under this Act.

Within 15 days of the enactment of this Act, the Secretary of Labor shall issue guidelines to assist employers in calculating the amount of paid sick time due.

Taking Emergency Paid Sick Leave

Emergency Paid Sick Leave is immediately available to any employee, regardless of how long the employee has been employed.

Regardless of whether the employee has any employer-provided accrued time off available (such as sick leave, vacation time, or PTO), Emergency Paid Sick Leave must be exhausted first. Thereafter, the employee may elect to use any other employer-provided paid time off accrued and available to the employee. An employer may not require an employee to use other paid leave provided by the employer first.

An employer may not require an employee to secure “coverage” in order to take emergency paid sick leave.

Failure to Provide Emergency Paid Sick Leave under this Act

Employers are prohibited from retaliating against employee who takes leave in accordance with the new law.

Failure to pay required emergency sick leave will be treated as a failure to pay minimum wages in violation of the Fair Labor Standards Act and will be subject to the wage and hour penalties associated therewith.

Healthcare Providers and Emergency Responders

An employer of healthcare providers or emergency responders may elect to exclude such employee from the provisions of the Emergency Paid Sick Leave Act.


Tax Credits

Subject to certain limitations, employers will be eligible for a tax credit each calendar quarter for an amount equal to 100% of the qualified emergency paid sick leave wages or family medical leave wages paid by the employer in the respective calendar quarter.

A tax credit will also be available for certain eligible self-employed individuals.


As more news develops, we will continue to provide updates.

Latest COVID-19 

Guidelines for Employers

From the Governor

Just last week, Governor Gavin Newsom issued an Executive Order in an effort to further enhance California’s ability to respond to the COVID-19 pandemic. The Governor’s order, among other things:

  • Waives the one-week waiting period for people who are unemployed and/or disabled as a result of COVID-19;
  • Delays the deadline for state tax filing by 60 days for individuals and businesses unable to file on time based on compliance with public health requirements related to COVID-19 filings;
  • Directs residents to follow public health directives and guidance, including canceling large non-essential gatherings that do not meet state criteria;
  • Readies the state to commandeer property for temporary residences and medical facilities for quarantining, isolating or treating individuals;
  • Allows local or state legislative bodies to hold meetings via teleconference and to make meetings accessible electronically; and
  • Allows local and state emergency administrators to act quickly to protect public health.

Employees Who Are 65+

Yesterday, the Governor further recommended that people over the age of 65 self-isolate. To that end, employers who are still operating should be mindful of employees who have been recommended to self-isolate, and to refrain from requiring such employees to report to work in the workplace.

Whenever possible, employees who have been recommended to self-isolate should be given remote working capabilities and/or time off (further discussed below).


LA Mayor Garcetti's Emergency Order

Yesterday, Los Angeles Mayor Eric Garcetti issued an Emergency Order placing temporary restrictions on restaurants, bars, and other establishments in the City of Los Angeles. The restrictions took effect in the City of Los Angeles at 11:59 p.m. yesterday (March 15, 2020) and will remain in place through noon on March 31, 2020, subject to extension.

The order temporarily closes bars and nightclubs that do not serve food, movie theaters, entertainment venues, bowling alleys, arcades, gyms and fitness centers.

Restaurants, bars and retail food facilities may not serve food for “dining in”, but may continue to offer food for delivery, takeout or drive-thru. The Mayor also strongly urged houses of worship to limit large gatherings on their premises and observe social distancing practices.

 

The following establishments within the City of Los Angeles will be temporarily closed to the public:

  • Bars and nightclubs that do not serve food;
  • Movie theaters and entertainment venues;
  • Bowling alleys and arcades; and
  • Gyms and fitness centers.

The following restrictions will also apply:

  • All restaurants will be prohibited from serving food to dine-in customers, but may continue to prepare and offer food via delivery service or take-out;
  • Houses of worship are urged to limit large gatherings on their premises and to explore and implement ways to practice their respective faiths while observing social distancing practices.

The following establishments will continue to operate:

  • Grocery stores will continue to operate and there is no shortage of food or interruption in our food supply;
  • Cafeterias within hospitals, nursing homes, and similar facilities will continue operations.

The Mayor also ordered a moratorium on evictions of residential tenants during this local emergency period if the tenant is able to show an inability to pay rent due to circumstances related to the COVID-19 pandemic.


What Employers Should Know

Reporting Time Pay

Under normal circumstances, in the event an employee who is scheduled to report to work, and does report to work, but is not put to work or furnished with less than half of their usual or scheduled day’s work because of inadequate scheduling or lack of proper notice by the employer, “reporting time pay” is due to the employee in the amount of half the usual or schedule day’s work, but in no event for less than 2 hours nor more than 4 hours, at the employee’s regular rate of pay.

 

BUT, reporting time pay is not required when the employer's operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue.

 

Paid Leave

At this time, there is no State or local requirement for a business to provide “paid leave” if that is not a benefit currently offered by the company, or otherwise required by law (i.e., paid sick leave).

However, federal lawmakers are currently working on the Families First Coronavirus Response Act (HR 6201), which would provide:

  • Free coronavirus testing.
  • Paid emergency leave.
  • Enhanced unemployment insurance.
  • Additional funding for nutritional programs.
  • Protections for health care workers and employees responsible for cleaning at-risk places.
  • Additional federal funds for Medicaid.

The House passed the bill yesterday and the Senate is expected to vote on the bill in the coming days. President Trump is expected to sign the bill this week.

Although changes are likely to occur before the bill is signed into law, a summary of the current bill includes, for employers with fewer than 500 employees:

  • Amendment of the Family and Medical Leave Act (FMLA) to provide up to 12 weeks of FMLA leave for employees who either have to quarantine themselves, care for a family member who is quarantined, or care for a child whose school has been closed.

Small businesses with fewer than 50 employees can apply for an
exemption through the Department of Labor “when the imposition of such
requirements would jeopardize the viability of the business.”

  • A new federal paid sick leave law requiring employers to provide 2 weeks of paid sick leave (up to 80 hours or the equivalent of 2 weeks for part-time employees) for people cannot work for COVID-19 related reasons such as being quarantined, caring for someone who is quarantined, or place of work or child’s school is closed due to COVID-19.

Businesses and self-employed individuals are eligible for a tax credit to
cover sick leave.

 

We will provide an update on this measure as developments occur.

 

Paid Sick Leave

All California employers are required to provide paid sick leave either pursuant to California’s Paid Sick Leave laws, or pursuant to any applicable local law/ordinance that may provide even more time off to employees.

For example, employers with operations within the geographic boundaries of the City of Los Angeles  must comply with the Los Angeles Minimum Wage Ordinance,either by:

  1. providing at least 48 hours of paid sick leave to an employee at the beginning of each year of employment, calendar year, or 12-month period (lump-sum/front-loading); or
  2. providing the employee one hour of sick leave per every 30 hours worked (accrual method).

For employers using the accrual method, accrued unused paid sick leave carries over to the following year of employment and may be capped at 72 hours; however, an employer may set a higher cap or no cap at all.

Additionally, salaried exempt employees must receive his or her full salary for any week in which the employee performs any work, without regard to the number of days or hours worked. This includes situations where the exempt employee is checking emails from home, etc.

 

Employee Use of Paid Time Off (PTO), Vacation and Sick Leave

Although an employer is required to provide Paid Sick Leave in accordance with applicable law (above), and an employer may provide other time off such as PTO or vacation time, an employee should be given the option to use such time for purposes of leave due to COVID-19, but not required, and in accordance with an employer’s other leave policies.

 

EDD - Unemployment Insurance (UI), State Disability Insurance (SDI) and Paid Family Leave (PFL)

The EDD is also offering support for people affected by the coronavirus.

  • Employees who incur a loss of wages due to a reduced work schedule or temporary closure of their workplace due to COVID-19 may file for unemployment benefits (UI).
  • Employees who are sick or quarantined due to having or being exposed to COVID-19 may file for disability insurance benefits (SDI).
  • Employees caring for someone who is sick with COVID-19 or quarantined due to being exposed to the virus may apply for paid family leave benefits (PFL).

More information from the EDD is available here.

Governor Newsom has issued an Executive Order giving the EDD discretion to waive the usual 7-day waiting period for:

  • Disability insurance applicants who are unemployed and disabled as a result of the COVID-19 and who are otherwise eligible for disability insurance benefits.
  • Unemployment insurance applicants who are unemployed as a result of the COVID-19 and who are otherwise eligible for unemployment insurance benefits.

 

EDD - Work Sharing Program

Employers can also apply for the Unemployment Insurance (UI) Work Sharing Program if reduced production, services, or other conditions cause them to seek an alternative to layoffs.

The Work Sharing Program helps employees whose hours and wages have been reduced:

  • Receive UI benefits.
  • Keep their current job.
  • Avoid financial hardships.

The Work Sharing Program helps employers:

  • Minimize or eliminate the need for layoffs.
  • Keep trained employees and quickly prepare when business conditions improve.
  • Avoid the cost of recruiting, hiring, and training new employees.

Click here for information on how to apply.


Other Resources

CA Department of Industrial Relations FAQ: https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm

CA Labor & Workforce Development Agency Coronavirus 2019 (COVID-19) Resources for Employers and Workers: https://www.labor.ca.gov/coronavirus2019/

To the extent a workplace is continuing operations, see:

Coronavirus:
What Employers Need To Know

The recent outbreak of Coronavirus Disease 2019 (COVID-19) has caused global concern. There is still a lot that is unknown about the virus, but there are steps employers can take to help prevent workplace exposures to acute respiratory illnesses, including COVID-19.

The U.S. Centers for Disease Control and Prevention (CDC) has provided guidance on recommended practical strategies for employers to help contain the spread of the virus and other acute respiratory illnesses. Ongoing updates about COVID-19 are available at the CDC's web page here.

At this time, employers are advised to implement the following precautions:

  • Actively encourage sick employees to stay home
    • Employees who have symptoms of acute respiratory illness should stay home and not come to work until they are free of fever (100.4° F [37.8° C] or greater using an oral thermometer), signs of a fever, cough, shortness of breath and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants). 
    • Ensure that your sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
    • Employers should maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual.
  • Separate sick employees and send sick employees home immediately
  • Emphasize respiratory etiquette and hand hygiene by all employees
    • Place posters that encourage staying home when sickcough and sneeze etiquette, and hand hygiene at the entrance to your workplace and in other workplace areas where they are likely to be seen.
    • Provide tissues and no-touch disposal receptacles for use by employees.
    • Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, and wash their hands with soap and water for at least 20 seconds.
    • Provide soap and water and hand sanitizer in the workplace. Ensure that adequate supplies are maintained. Place hand sanitizers in multiple locations and in conference rooms to encourage hand hygiene.
    • Visit the coughing and sneezing etiquette and clean hands webpage for more information.
  • Perform routine environmental cleaning
    • Provide disposable disinfectant wipes so that commonly used surfaces (i.e., doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use.
    • Routinely clean all frequently touched surfaces in the workplace with disinfectant wipes such as workstations, counter tops, and doorknobs.
  • Advise employees to take certain steps before traveling
    • Check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country.
    • Advise employees to check for symptoms of acute respiratory illness before traveling and notify their supervisor and stay home if they are sick.
    • Ensure employees who become sick while traveling understand that they should notify their supervisor and should promptly call a healthcare provider for advice if needed.
    • If outside the U.S., sick employees should follow Company policy for obtaining medical care or contact a healthcare provider or overseas medical assistance company to assist them with finding an appropriate healthcare provider in that country. A U.S. consular officer can help locate healthcare services.

Employee Exposure to COVID-19

Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

In the Event of a COVID-19 Outbreak 

The severity of illness or how many people will fall ill from COVID-19 is unknown at this time. If there is evidence of a COVID-19 outbreak in the U.S., employers should plan to be able to respond in a flexible way to varying levels of severity and be prepared to refine their business response plans as needed. For the general American public, such as workers in non-healthcare settings and where it is unlikely that work tasks create an increased risk of exposures to COVID-19, the immediate health risk from COVID-19 is considered low. The CDC and its partners will continue to monitor national and international data on the severity of illness caused by COVID-19, will disseminate the results of these ongoing surveillance assessments, and will make additional recommendations as needed.

All employers need to consider how best to decrease the spread of acute respiratory illness and lower the impact of COVID-19 in their workplace in the event of an outbreak in the U.S. Employers should prepare an Infectious Disease Outbreak Response Plan that identifies and communicates their objectives, which may include one or more of the following: (a) reducing transmission among staff, (b) protecting people who are at higher risk for adverse health complications, (c) maintaining business operations, and (d) minimizing adverse effects on other entities in their supply chains.

Click here for more detailed guidance for employers from the CDC.

EMPLOYERS:

Are your I-9 and W-4 forms up to date?

Form I-9

On Jan. 31, 2020, the U.S. Citizen and Immigration Services (USCIS) announced a new version of Form I-9, Employment Eligibility Verification, effective the same date. The new I-9 contains changes to the form and its instructions. Employers are required to begin using the updated form by April 30, 2020, however, we recommend implementing the new form for all new hires going forward.

The new 2020 Form I-9 is available here.


Form W-4

On December 5, 2019, the IRS released a new version of Form W-4, re-titled "Employee's Withholding Certificate", effective January 1, 2020. The new version of the form also contains important changes to the form and its instructions. Employers should be sure to begin using the new 2020 W-4 for all new employees, and for all adjustments to the W-4 made by current employees, after January 1, 2020.

The new 2020 Form W-4 is available here.


Employers should be sure to update their procedures to include the implementation of all new I-9 and W-4 documentation, consistent with the latest up-to-date versions. 

We work tirelessly with our clients to proactively determine, before an issue arises, where they are vulnerable. Please contact us if you have any questions regarding your company’s readiness for the new year.

Every New Year seems to bring with it many new legal requirements for California employers, and this year is no different as Governor Gavin Newsom has signed numerous pro-employee bills into law that will impact all California employers starting January 1, 2020. The following is a rundown of some of the most notable new laws.


AB 5: Independent Contractor ABC Test

This law codifies and expands the reach of the “ABC” test set out in the California Supreme Court’s decision in Dynamex West, Inc. v Superior Court and makes the “ABC” test applicable to the California Wage Orders, the Unemployment Insurance Code and the California Labor Code. Under the ABC test, a worker will be considered an employee unless the hiring entity can establish that all of the three following conditions are satisfied:

(A)        The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;

(B)        The worker performs work that is outside the usual course of the hiring entity’s business; and

(C)        The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

Subject to specific exceptions, failure to satisfy any of the three factors of the ABC test results in a finding that the worker is an employee and not an independent contractor.

In light of AB 5, it is imperative that employers consult with legal counsel to evaluate the continued use of independent contractors as part of their workforce.


AB 9: The Stop Harassment and Reporting Extension (“SHARE”) Act

This law extends the deadline to file an allegation of unlawful workplace harassment, discrimination or civil rights-related retaliation under the Fair Employment and Housing Act (FEHA) from one year to three years.

This new law will result in employers having to defend older claims. Now, more than ever, employers must ensure that timely and accurate documentation is maintained in order to preserve evidence in cases where memories have faded over time.


AB 51: Limitations on Arbitration Agreement

AB 51 prohibits employers from requiring employees or applicants to waive any right, forum or procedure for a violation of the Fair Employment and Housing Act (FEHA) or the Labor Code as a condition of employment and effectively bans mandatory arbitration agreements. The law also prohibits retaliation against an employee who refuses to sign an arbitration agreement.

Notably, AB 51 does not apply to negotiated severance agreements or post-dispute settlement agreements and does not invalidate any written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act (FAA).

It also remains to be seen whether the new statute applies only to new agreements, or to existing ones as well. By its own terms, AB 51 applies only to arbitration agreements “entered into, modified, or extended on or after January 1, 2020.” But AB 51 does not explain what it means for an agreement to be “extended” after January 1, 2020, which begs the question as to whether any attempt to enforce an arbitration agreement that was entered into before January 1, 2020 is prohibited by the law.

Since Governor Newsom signed AB 51 in October 2019, a lawsuit has been filed in federal court challenging the constitutionality of the law and seeking to strike it down. On December 30, 2019, a federal district judge granted a temporary injunction (also known as a restraining order) halting AB 51 from going into effect on January 1, 2020, pending the outcome of a January 10, 2020 hearing for a preliminary injunction. On January 10, 2020, the court extended the temporary restraining order until January 31, 2020.

As developments continue to occur, we will provide you with updates on the status of AB 51.

Although the law has not yet taken effect and is thus far stayed, employers should consult with legal counsel prior to implementing any new arbitration agreements or modifying any existing agreements.


SB 142: Lactation Accommodations

This law expands an employer’s duties and responsibilities in providing lactation accommodation to those employees who need to express breast milk. Under this law, employers are required to provide a lactation room or location that is not a bathroom that:

    1. Is in close proximity to the employee’s work area;
    2. Is shielded from view;
    3. Is free from intrusion while the employee is expressing milk;
    4. Is safe, clean and free of hazardous materials;
    5. Contains a surface to place a breast pump and personal items;
    6. Contains a place to sit; and
    7. Has access to electricity.

Employers must also provide access to a sink with running water and a refrigerator for storing milk in close proximity to the employee’s working space

The new law further requires employers to develop and implement a lactation policy which must include, among other things, a statement about an employee’s right to request lactation accommodation and a statement about an employee’s right to file a complaint with the Labor Commissioner for an employer’s failure to provide the accommodation. The law imposes a $100 penalty on employers per violation.

Employers with 50 or fewer employees that demonstrate that this law would impose an undue hardship (such as being too difficult or expensive) may be exempted from the requirements of SB 142.

Employers must revise their employment policies to address the requirements of this new law as doing so is now legally required.


SB 188: The CROWN Act (Create a Respectful and Open Workplace for Natural Hair)

SB 188 expands the Fair Employment and Housing Act’s (FEHA) definition of race to include traits historically associated with race, such as hair texture and protective hairstyles. The bill defines “protective hairstyles” as including, but not limited to, “braids, locks and twists.” The law prohibits workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists and locks.

Employers must ensure that those who have responsibility for implementing the company’s dress code and other personnel policies understand this new law and the protections it affords. Well-drafted polices and manager training are a must.


AB 673: Payment of Wages

AB 673 will authorize an employee to pursue a private right of action to recover penalties when an employer is late in paying wages through the Private Attorneys General Act (PAGA) and will remove the authority for the Labor Commissioner to recover civil penalties in an independent civil action. The law further clarifies that employees can pursue either a wage claim for this purpose or a PAGA suit, but not both.

This new law is actually one of the few “wins” for employers as it should decrease settlement value in wage and hour class actions and PAGA cases.


SB 688: Failure to Pay Promised Wages

This law amends Labor Code § 1197.1 which currently permits the Labor Commissioner to issue a citation where an employer has failed to pay at least the minimum wage. The law expands the power for the Labor Commissioner to issue a citation to instances where the employer has contractually promised to pay more than minimum wage but has failed to pay the promised wage.

This new law effectively empowers the Labor Commissioner to enforce a breach of contract claim for wages against an employer. Employers must make sure that employees are accurately paid for all time worked.


SB 707: Arbitration Costs

An employer’s failure to pay costs and fees associated with an arbitration within 30 days of the due date is a breach of the arbitration agreement, thereby waiving the right to compel arbitration. The new law provides that the employee would, in turn, be able to withdraw the claim from arbitration and prosecute his or her claim in court.

Employers must ensure that they timely pay all fees and costs associated with arbitration, otherwise they risk having to defend themselves in court.


AB 749: Prohibition of “No Rehire” Provisions in Settlement Agreements

AB 749 prohibits and voids “no rehire” provisions in settlement agreements entered into on or after January 1, 2020. The law does have some exceptions, including where the employer has made a good faith determination that the individual engaged in sexual harassment or assault. An employer is also not required to rehire an individual if there is a legitimate non-discriminatory or non-retaliatory reason for terminating employment or refusing to rehire.

Personnel responsible for overseeing settlement negotiations should be apprised of this new law and take care not to use such language in any settlement agreement except as permitted under this new law.


SB 778: Sexual Harassment Training

SB 778 extends the original compliance deadline associated with SB 1343 (passed in 2018) from January 1, 2020 to January 1, 2021. The law requires employers with five or more employees to provide two hours of sexual harassment training to its supervisory staff and one hour of such training to its nonsupervisory staff within six months of hire or promotion into a supervisory role, and every two years after that.

Although this law has given employers a temporary reprieve, employers should not delay in providing harassment prevention training to its employees in order to comply with its legal obligation to prevent harassment and discrimination from occurring in the workplace. 


AB 1223: Organ Donations

AB 1223 expands employee protection for organ donation by requiring employers with 15 or more employees to provide an employee with an unpaid leave of absence (up to 30 business days per year), in addition to the existing 30 business days of paid leave, for the purpose of organ donation.

Employers should review their written policies regarding organ donation and determine if existing policies needs to be updated in light of this change in the law.


Minimum Wage Increase

Effective January 1, 2020, the California state minimum wage will increase to $13.00 per hour for employers with 26 or more employees and $12.00 per hour for employers with fewer than 20 employees.

Note: Certain California cities have enacted minimum wage ordinances that exceed the state minimum wage. For example, in the City of Los Angeles, the minimum wage is $14.25 per hour for employers with 26 or more employees and $13.25 per hour for employers with 25 or fewer employees. And, effective July 1, 2020, the minimum wage in the City of Los Angeles will increase again, to $15.00 per hour for employers with 26 or more employees and $14.25 per hour for employers with 25 or fewer employees.

If an employee’s rate of pay will increase as a result of an increase in the minimum wage, employers must provide their employees with notice of any such increase pursuant to Labor Code § 2810.5.


We work tirelessly with our clients to proactively determine, before an issue arises, where they are vulnerable. Please contact us if you have any questions regarding your company’s readiness for the new year.

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