On March 19, 2021, Governor Newsom signed legislation ensuring new supplemental paid sick leave (SPSL) for eligible workers impacted by the COVID-19 pandemic. The bill, SB 95, provides up to 80 hours of paid leave for employees who are forced to miss work for qualifying reasons. The SPSL covers many more employers than previous legislation, and allows workers to use the leave for more reasons. The law is codified in new California Labor Code sections 248.2 and 248.3, the text of which can be found here. The Labor Commissioner has also issued FAQs, found here, to help employers navigate their new obligations. Below are some of the key aspects of the new law and some of the items addressed in the FAQs.

Coverage

All employers, whether public or private with at least 25 employees are required to offer the SPSL. This represents a significant expansion of California’s previous pandemic-related sick leave law, which only applied to employers with more than 500 employees.

The new paid sick leave is available to all employees who cannot work or telework for qualifying reasons. Employees who may not be able to report in person to work, but who may still perform their job duties remotely, will not be eligible for SPSL. Covered employees are entitled to the new SPSL in addition to any paid sick leave that was provided under previous laws that expired on December 31, 2020. This means any employee who used paid sick leave under the federal Families First Coronavirus Response Act (FFCRA) in 2020 will be eligible for up to 80 hours of new SPSL under the California law.

To read the full article, please click here to download a PDF.

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

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

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

  • The revisions to the FFCRA provisions regarding tax credits shall apply only to wages paid with respect to the period beginning on April 1, 2021, and ending on September 30, 2021.
  • In addition to the reasons already contained in the FFCRA, paid sick leave may be taken when an employer requests the employee take a COVID-19 test or obtain a diagnosis; when the employee is obtaining immunization related to COVID-19; or when the employee is recovering from any injury, disability, illness, or condition related to such immunization after a medical diagnosis.
  • The amount of available paid sick leave under the FFCRA shall be applied separately for each calendar year after 2020, and with respect to calendar year 2021, without regard to the first quarter thereof. This means that as of April 1, 2021, a new allotment of 10 days of paid sick leave under the FFCRA shall be available for eligible employees if employers choose to provide it and seek the applicable tax credit.
  • The amount of qualified emergency family leave wages has been increased so that it is up to $200 for any one day, and an aggregate (cap) of $12,000, which is $2,000 more than the original cap of $10,000 under the FFCRA.
  • Emergency family leave under the FFCRA may now be taken for the same reasons as FFCRA paid sick leave, rather than just to care for a child due to school or day care closures as originally provided for under FFCRA.
  • No tax credit shall be allowed for either FFCRA paid sick leave or FFCRA emergency family leave if an employer discriminates in the granting of FFCRA leave in favor of highly compensated employees, full-time employees, or other employees based on employment tenure.

The ARPA also makes some modifications to the FFCRA provisions dealing with self-employed individuals.  The details regarding the ARPA’s revisions to the FFCRA can be obtained at Text – H.R.1319 – 117th Congress (2021-2022): American Rescue Plan Act of 2021 | Congress.gov | Library of Congress

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The Labor and Employment attorneys at Weintraub Tobin have years of experience assisting employers in employment law compliance, including the administration of their leave of absence and sick leave policies.  Feel free to reach out to one of them if we can be of assistance.  Stay safe!

Background:

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

This requirement poses practical challenges for large employers with many non-exempt employees who need to take simultaneous meal periods for business efficiency purposes.  If employees must exit for lunch in file, and/or clock out on a limited number of machines, not all meal periods will begin exactly on the hour.  Similarly, if employees are left, literally, to their own devices, e.g., cell phones, to clock out, it is inevitable that not all employees will clock in and out precisely on the hour.  In addition, requiring California employees to use personal cell phones for any work-related purpose, including simply clocking in and out, implicates employer reimbursement obligations.  See Cal. Lab. Code § 2802.  Prior to the Court’s decision in Donohue v. AMN Services, LLC, No. S253677, 2021 WL 728871 (Cal. Feb. 25, 2021), employers programmed time keeping software to “round” to avoid this dilemma.  For example, if a worker clocked in at 6:56am and clocked out at 12:02pm, the timekeeping software would “round” this time worked on the employee’s time records to reflect a 7:00am to 12:00pm shift.

In the seminal case, Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012), the California Supreme Court first held that if an employer’s records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided.  The Court reasoned that this was consistent with an employer’s recordkeeping obligation with respect to meal periods.  In other words, “the burden is on the employer, as the party asserting waiver, to plead and prove it.”  Id. at 1052-53.  The Court explained that this burden lies with the employer because “where the employer has failed to keep records required by statute, the consequences for such failure should fall on the employer, not the employee.”  Id. at 1053.

The California Supreme Court Decision in Donohue v. AMN Services, LLC:

In Donohue v. AMN Services, LLC, the California Supreme Court decided two issues of law relevant to meal periods.  First, the Court held that employers cannot round time punches, i.e., adjust the hours that an employee has actually worked to the nearest preset time increment, in the meal period context.  Second, and far worse for employers, the Court held that time records depicting noncompliant (late, interrupted, or missed) meal periods raise a rebuttable presumption of meal period violations, including at the summary judgment stage of litigation.

In Donohue, the Court explained: “Donohue does not dispute that the rounding policy overcompensated the class by 85 work hours, as AMN’s expert concluded, when considering only compensation for time worked.  Instead, the issue is whether AMN’s rounding policy resulted in the proper payment of premium wages for meal period violations.”  Id. at 8-9.  Per the Court, “The practice of rounding time punches for meal periods is inconsistent with the purpose of the Labor Code provisions and the IWC wage order. The text of Labor Code section 512 and Wage Order No. 4 sets precise time requirements for meal periods.”  Id. at 12.  The Court also noted that it had similarly “scrupulously guarded against encroachments on” 10-minute rest periods, id., at 12-13 (citing Troester v. Starbucks Corp., 5 Cal. 5th 829, 844 (2018)), concluding, “the same vigilance is warranted here.  Given the relatively short length of a 30-minute meal period, the potential incursion that might result from rounding is significant.”  Donohue at 13.  The Court also reasoned that “[t]he premium pay structure…confirms that rounding is inappropriate in the meal period context” because employers are required to pay the same premium whether the violation is significant (e.g., a missed break) or minor (e.g., a one-minute late lunch).  See id. at 13.

Reasoning that the “affirmative defense” of waiver goes to the merits of the case, the Court in Donohue held, “the presumption goes to the question of liability and applies at the summary judgment stage, not just at the class certification stage.”  Id. at 24.

Why This Matters:

First, meal period premiums can be significant.

Example:  If a company employs 100 non-exempt employees who work 8 hours per day, 5 days per week, all earning minimum wage ($14/hour) and each employee clocked out 1 minute late to lunch, or clocked back in 1 minute early from lunch, only 2 days per week, after only one month, the employer would pay $11,200 in meal period premiums (100 employees x $14/hour penalty x 2 lunches x 4 weeks), in addition to its regular payroll.  In one year, that would be $134,400.

Second, if timekeeping records depict late, interrupted, or missed meal periods and the employer fails to pay the required premiums, in a class action alleging the same, the court now presumes the employer violated the law.  The employer has the burden of rebutting this presumption.

What To Do Now?

As a practical matter, in the wake of Donohue, employers must ensure that all employees receive at least 30 minutes of uninterrupted, off-duty meal break time as required.  If the time clock reads one or two minutes short, employers must either pay the premium or fight an uphill battle in court.

One way employers might protect themselves is by re-orienting work schedules to provide for 35+ minute unpaid meal breaks.  This will not cost employers additional money because the meal period is unpaid.  And, it would allow additional time for employees to clock in and out, significantly reducing the number of meal period premiums employers must pay any time a timesheet lists a late, interrupted, or missed meal period.

Regarding individuals who opt to forgo employer-provided breaks, employers cannot force breaks and must pay them for all time worked.  As such, employers should require all individuals who voluntarily waive breaks to sign declarations attesting to the same.

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The Labor and Employment attorneys at Weintraub Tobin have years of experience counseling employers in wage and hour compliance and in defending them in wage and hour disputes.  If you need assistance in evaluating your timekeeping and meal and rest policies and procedures, feel free to reach out to one of them. 

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

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

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

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

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

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

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

The criteria for allowing a vaccinated individual to skip quarantine – and continue working – after exposure to a COVID-19 case, are: Continue Reading Updated CDC Guidance: Fully Vaccinated Individuals Need Not Quarantine After COVID-19 Exposure