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Inoculating Against the Coming Spread of Employee Lawsuits Related to COVID-19

Posted in Disability Discrimination, Discrimination, FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations, Retaliation and Wrongful Termination

As workplaces begin reopening in the coming weeks, attorneys are predicting a rash of lawsuits by employees against their employers related to the COVID-19 pandemic.  It seems clear that workers-compensation preemption may immunize employers from most civil actions alleging that employees became infected with the virus on the job.  However, other types of employee lawsuits may reach fever pitch.

There does not appear to be any vaccination to alleviate many of the anticipated claims.  Still, just as good hygiene practices may help flatten the curve of the actual coronavirus, good employment practices can help reduce the incidence of such lawsuits in your workplace.  Here are four types of employment claims that are likely to spread like a contagion as employees are expected to (or actually do) return to their jobs, along with some inoculations that employers should consider:

Disability Claims

According to at least one media outlet, the head of the U.S. Equal Employment Opportunity Commission’s New York office reported this week that charges accusing employers of failing to accommodate workers’ disabilities are outpacing any other allegation tied to COVID-19 in the Empire State.  Employers should anticipate similar developments here in the Golden State.

Indeed, California’s Fair Employment and Housing Act (“FEHA”) and its federal counterpart, the Americans with Disabilities Act (“ADA”), both prohibit disability discrimination and require employers to provide reasonable accommodations to disabled employees.  An ounce of prevention – by engaging in the interactive process (from a safe distance) with infected or otherwise disabled employees to identify reasonable accommodations – often is more economical than the pound of cure that would come from prevailing in a failure-to-accommodate lawsuit.

In this regard, employers should remember that each request for an accommodation must be analyzed independently, and that a leave of absence may constitute a reasonable accommodation.  Thus, if employees request a leave of absence, either to get over their own COVID-19 infection or to reduce the risk of being exposed to the coronavirus due to some preexisting disability that puts them at greater risk, serious thought must be given to fashioning a workable accommodation.

Some employers may find respite in the notion that a coronavirus infection might not constitute an actual disability under the ADA or the FEHA, as the illness typically impairs its victims moderately or for only a short duration of time.  But this brand of comfort is often an ineffective placebo and not a recommended treatment to prevent the spread of disability lawsuits.  That is because the effects of a COVID-19 infection may be more long-lasting or create a more severe impairment for some individuals.  Thus, it would be a mistake for an employer to assume that such an infection can never amount to a protected disability.

At the same time, both the FEHA and the ADA prohibit employers from discriminating on the basis of a perceived disability.  Thus, it is foreseeable that some employers might decide to treat certain workers differently than others because they believe certain workers have some other actual or perceived medical condition (e.g., a persistent cough, or diabetes, or an immunodeficiency, or Chronic Obstructive Pulmonary Disease).  Employers may worry that letting such vulnerable employees return to the job or interact with coworkers might make them more susceptible to getting or spreading COVID-19.  While treating such employees differently in this manner may seem (or even might actually be) an act of caring and concern that would rival Florence Nightingale, such actions can lead to costly challenges in court (especially if they are applied in a clumsy fashion).

Disability harassment is another type of claim that employers may anticipate.  One way this type of claim may arise is when coworkers, managers or supervisors develop a notion that a particular employee was (or is) infected with coronavirus and spread (or is spreading) the sickness to the workplace.  If such coworkers, managers or supervisors are allowed to harass, insult or ostracize an employee on that basis, the employer may find itself in need of some urgent care from lawyers.

Tameny Claims

The so-called Tameny claim is named after the California Supreme Court’s decision 40 years ago in Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167.  Under the high court’s ruling in that case, a worker may pursue a lawsuit when he or she alleges that the employer terminated his or her employment in violation of some public policy.

It is difficult to tally how many Tameny claims are spreading in California, as the administrative agencies that handle claims of disability discrimination (or other types of discrimination, harassment or retaliation) typically are not responsible for investigating a Tameny claim.  So we may not know for many months how many Tameny claims have been filed in court; nonetheless, there is good reason to think the number will be high.

Keep in mind that California has a public policy that requires employers to “furnish employment and a place of employment that is safe and healthful for the employees therein.”  (Cal. Labor Code, § 6400.)  Also bear in mind that California has a public policy that prohibits employers from “preventing an employee from disclosing information to a government or law enforcement agency,” or to a manager or supervisor, “who has authority to investigate, discover, or correct the violation or noncompliance.”  (Cal. Labor Code, § 1102.5.)

With those public policies in mind, there are two general ways to become exposed to a Tameny affliction.  One arises when an employee is fired for refusing to execute some task on the job that actually would be unlawful.  The second arises when the employee is fired for complaining about what he or she reasonably perceives to be unlawful activity in the workplace (even if the activity in question turns out to be legal).

Regarding the first variety, it is easy to foresee the following scenario developing:  An employer directs an employee to return to work and the employee refuses and is fired.  If the employer instructed the employee to return before the government lifted restrictions for that specific workplace, terminating the employee for refusing to return may violate a public policy.  Likewise, if the employer waits until the restrictions lift but then fails to enforce regulations requiring social distancing or sanitary practices or the donning of personal protective equipment (“PPE”), firing an employee for refusing to work under such conditions may also be in violation of public policy.

Turning to the second type of Tameny ailments, it is equally easy to anticipate these scenarios occurring:  An employer directs an employee to return to work either before the restrictions are lifted or after the restrictions are lifted but without implementing or enforcing policies for social distancing, sanitation, or PPE.  The employee complies, returns to the job, and performs his or her work, but not quietly or without protest.  Instead, the employee complains about the workplace conditions, either to a governmental agency or a supervisor, and is subsequently fired.  Terminating an employee for complaining about such workplace conditions may be in violation of public policy.

One aspect of many Tameny claims that make them look less severe than other types of claims is that they often do not result in the employer having to pay the employee’s attorney fees.  However, given the other undesirable symptoms and bad side-effects that such lawsuits can trigger (e.g., lost productivity due to litigation, or the risk of emotional-distress and even punitive damages), that is a bit like telling a sick patient suffering from simultaneous chills and sweats that a fever of 103.8 degrees is not as bad as one that is 104 degrees.

Leave Claims

There are a number of federal and state laws that require various employers to provide a certain amount of protected leave to covered employees; for example, the federal Families First Coronavirus Response Act (“FFCRA”), the federal Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”).

The FFCRA was passed just this year to provide workers with protected leave if they have been impacted in various ways by the coronavirus and related shelter-in-place orders.  It has already resulted in what some might call an epidemic of lawsuits where employees have claimed that their employer interfered with their protected leave, denied them benefits, or fired them in retaliation for requesting leave.

Meanwhile, the FMLA and the CFRA are not geared specifically for coronavirus-related leaves, like the FFCRA is, but those laws may still protect such leaves of absence.  Making things more complicated, there may be overlap between these leave entitlements and some employers may be subject to all of these laws, while others are subject to some or none of them.

It is very probable that employers will be faced with many more leave requests, either to care for someone who has been infected with COVID-19 or to stay at home with a child whose school or daycare facility remains closed while some restrictions are lifted.  Of course, employees also may request leave to deal with other health conditions that deteriorated while they were unable to get routine medical treatment while sheltered in place.  Each leave request should be given serious consideration.

Discrimination Claims

Whereas some employers may be struggling with too many employees in need of leave, others may be grappling with having to lay off employees due to downturns in business as a result of the shelter-in-place restrictions.  In either scenario, care must be given to how such decisions are made and serious thought must be devoted to the potential results.

Such decisions may trigger claims under the FEHA or its federal counterparts, Title VII of the Civil Rights Act or the Age Discrimination in Employment Act.  Those laws bar making employment decisions on the basis of certain protected categories; for instance, age, race, national-origin, gender or religion.

When deciding which employees are going to be given leaves of absence, or laid off, or assigned to certain duties, consistent procedures and rationales must be followed.  Even then, under what is called the disparate-impact type of claim, a neutral policy or practice can lead to discrimination liability if it has a statistically disproportionate impact on a certain class of workers.

Inoculate Against Such Claims

There is no vaccine that will prevent or get rid of all such claims, but the harmful effects of such lawsuits can be ameliorated by following certain precautions.

First, be sensitive to actual or perceived disabilities, do not make medical assumptions, work hard to identify and implement reasonable accommodations for disabled employees, and be vigilant in guarding against harassment of employees on the basis of some perceived or actual medical condition.

Second, take every request for a disability accommodation or leave of absence seriously and analyze each one independently on its own merits.

Third, do not violate or direct your employees to violate governmental shelter-in-place, social-distancing, sanitary or PPE restrictions or regulations.

Fourth, whenever making a termination decision, be sure it is for reasons that have absolutely nothing to do with the employee’s refusal to violate some public policy or the employee’s complaints about reasonably perceived violations of some public policy.

Fifth, make certain that personnel decisions have nothing to with protected classifications (e.g., age, race, gender, religion) and carefully analyze how decisions may impact protected classes of employees.

Just as there presently is no medicine that is sure to eradicate the current pandemic, there is no one-size-fits-all regimen that will completely wipeout such employment claims.  Even these steps cannot completely immunize employers against all these types of lawsuits, yet failing to adopt such protective measures probably will increase the risk of exposure to these afflictions.

Finally, it seems obvious that getting prompt medical attention may stem the more serious effects of a disease; by the same token, obtaining early legal advice may decrease the incidence or cost of these exorbitant types of lawsuits.

The DFEH’s Free On-Line Sexual Harassment Prevention Training For Non-Supervisors is FINALLY Available

Posted in Labor Law, New Legislation and Regulations

On May 20, 2020, the California Department of Fair Employment and Housing (DFEH) announced that it has finally launched free anti-sexual harassment training for non-supervisory employees. The online training, which is available through DFEH’s website – https://www.dfeh.ca.gov/shpt/ – will meet an employer’s obligation to provide training to non-supervisory employees by January 1, 2021.

Section 12950.1 of the California Government Code requires employers with five or more employees to provide at least one-hour of classroom or other effective interactive training and education regarding sexual harassment prevention to all non-supervisory employees in California.

According to the DFEH’s announcement, its new training is interactive and optimized for mobile devices and is accessible for persons with disabilities. The training is currently available in English and will be available in five additional languages in the coming months (Spanish, Simplified Chinese, Tagalog, Vietnamese, and Korean).

The DFEH said that it is planning to launch a similar online training for supervisors in California in the coming months to help employers meet their obligation under Government Code section 12950.1 to provide supervisors with two hours of training by January 1, 2021.

The full DFEH announcement can be found at: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/05/SHPT_PR.pdf

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 Continues to Work With Counties for the Slow Re-Opening of the State

Posted in Labor Law, New Legislation and Regulations

This is a follow up to our previous blog regarding California’s gradual entry into Stage 2 of the State’s re-opening plan – termed the “Resilience Roadmap.”  As Governor Newsom announced on Tuesday, May 13, 2020, counties are able to, and are, submitting their attestations to the State to speed up the reopening of certain businesses within their counties.  As such, the gradual reopening of businesses in Stage 2 is a fluid and rapidly evolving process driven not only by the State’s decisions on what businesses can and cannot reopen (on a modified basis) at this time, but also on what counties are doing to help move the process along for their businesses.  However, it is important to note, that the State has made very clear that if counties have more restrictive shelter-in-place orders in place, they may continue to enforce them even if the State’s order is modified to reduce certain restrictions.

The evolving re-opening plan around the State is being regularly updated on the State’s website.  Because the updates are happening in real time, it is important for businesses to regularly check the California Department of Public Health’s website to determine the current status of the State and county orders that apply to their business location(s). The website can be found here: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Local-Variance-Attestations.aspx

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

 

EEOC Again Updates its Guidance & FAQ’s Regarding COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

Posted in FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations

The EEOC has updated its COVID-19 Guidance once again 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 updated/new FAQs.  The complete EEOC’s Guidance and FAQs can be found here.

A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? (4/23/20)

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

D.12. Do the ADA and the Rehabilitation Act apply to applicants or employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC? (4/23/20)

Yes. These CDC designations, or any other designations of certain employees, do not eliminate coverage under the ADA or the Rehabilitation Act, or any other equal employment opportunity law. Therefore, employers receiving requests for reasonable accommodation under the ADA or the Rehabilitation Act from employees falling in these categories of jobs must accept and process the requests as they would for any other employee. Whether the request is granted will depend on whether the worker is an individual with a disability, and whether there is a reasonable accommodation that can be provided absent undue hardship.

G.3. What does an employee need to do in order to request reasonable accommodation from her employer because she has one of the medical conditions that CDC says may put her at higher risk for severe illness from COVID-19? (5/5/20)

An employee – or a third party, such as an employee’s doctor – must let the employer know that she needs a change for a reason related to a medical condition (here, the underlying condition).  Individuals may request accommodation in conversation or in writing.  While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, she may do so.

The employee or her representative should communicate that she has a medical condition that necessitates a change to meet a medical need.  After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.

G.4. The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19.  An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation.  How does the ADA apply to this situation?

First, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.

If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19.  Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation.

The ADA direct threat requirement is a high standard.  As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health under 29 C.F.R. section 1630.2(r). A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence. The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.  Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his particular job duties.  A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite.  Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation (absent undue hardship).  The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions.  This can involve an interactive process with the employee.  If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework).  An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.

G.5. What are examples of accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self? (5/5/20)

Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace.  Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others.  Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position).  In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

These are only a few ideas.  Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace.  An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations.  As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.

The Labor and Employment attorneys at Weintraub Tobin continue to wish you and your family the best through this unprecedented time.  If we may be of assistance to you in your employment law needs, feel free to reach out to any of us.

 

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

Posted in Labor Law, New Legislation and Regulations

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

Posted in Labor Law, New Legislation and Regulations, Wage & Hour

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.

Emergency Paid Sick Leave Now Available for Employees of Large Employers in California’s Food Supply Sector

Posted in FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations

In response to the COVID-19 pandemic, the federal government recently passed emergency legislation making up to two weeks of paid sick leave benefits available to employees who are forced to miss work for reasons relating to COVID-19. We previously blogged about the paid sick leave made available under the Families First Coronavirus Response Act (“FFCRA”) here and here. The FFCRA’s paid sick leave, however, is not available to employees of large employers, defined as those with at least 500 employees. California has now stepped up to fill that gap for employees in the food supply sector who work for these larger employers.

On April 16, 2020, Governor Gavin Newsom signed Executive Order N-51-20, which provides two weeks of paid sick leave to food supply sector employees who are unable to work due to any of the following:

  • A quarantine or isolation order in place by the federal, state, or local government related to COVID-19;
  • Being advised by a healthcare provider to self-quarantine due to COVID-19 concerns;
  • Being prohibited by a hiring entity from working due to COVID-19 concerns.

The order applies to “Food Sector Workers,” which includes farmworkers, agricultural workers, workers who can, freeze, preserve, or harvest food, grocery store and restaurant workers, and delivery drivers. The leave is available to any of the above workers who perform work for a “hiring entity,” which is defined as any entity that has 500 or more employees in the United States.

The Order provides up to 80 hours of paid sick leave for any workers who an employer considers to be full time or those who worked or were scheduled to worker at least 40 hours per week, on average, in the two weeks preceding the date the worker began using the sick leave. In turn, part-time employees are entitled to take up to the average number of hours they are normally scheduled to work over two weeks. If a part-time worker has a variable schedule, they are entitled to take up to 14 times the amount of daily hours they averaged over the preceding 6 months.

The leave is available to all qualifying workers immediately upon either oral or written request. Sick leave hours must be paid at the higher of the workers’ regular rate of pay, the state minimum wage, or the local minimum wage where the worker performs work, but in no event will a worker be entitled to more than $511 per day or an aggregate cap of $5,110.

The intent of the Order is to fill the gap left under the FFCRA that provides similar paid sick leave only to employees of employers with fewer than 500 workers, rather than to provide additional leave to employees who already qualify.  The amount of paid sick leave available, and the floors and caps on the amount of pay are identical to those set forth in the FFCRA’s paid sick leave. In addition, employers are not required to provide additional leave under the Order to those employees who are already entitled to equivalent paid sick leave under the FFCRA or as a discretionary benefit from the employer.

There is, however, one key distinction between the FFCRA leave and the paid sick leave available under Executive Order N-51-20. Whereas employers are entitled to a dollar-for-dollar tax credit for all sick leave paid under the FFCRA, no such tax credit language was included in the State Order. Unless further legislation is passed covering this discrepancy, large employers paying sick leave under this Order will not be reimbursed for it from the State.

In addition to making the sick leave available, employers must post notice to employees of their leave rights under the Order. The Labor Commissioner’s office has created a notice for this purpose, a copy of which can be found here.  Finally, in addition to the paid sick leave discussed above, the Order requires that all food sector workers be permitted to wash their hands every 30 minutes and additionally as needed. Should any employer fail to comply with the order, employees may file complaints with the Labor Commissioner.

California employers should continue to monitor our blog for future updates concerning employment developments as a result of the COVID-19 pandemic. We also advise employers to seek legal advice to determine whether Executive Order N-51-20 applies to their business, and if so, what steps to take to ensure compliance.

 

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

Posted in Employment Contracts and Agreements, Labor Law, New Legislation and Regulations, Wage & Hour

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.

 

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

Posted in FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations

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).

D.6. During the pandemic, may an employer still engage in the interactive process and request information from an employee about why an accommodation is needed? (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’s disability necessitates an accommodation, either the one he requested or any other. Possible questions for the employee may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties).

D.7.  If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation? (4/17/20)

Yes.  Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the “interactive process” (discussed in D.5 and D.6., above) and grant the request.  In addition, when government restrictions change, or are partially or fully lifted, the need for accommodations may also change.  This may result in more requests for short-term accommodations. Employers may wish to adapt the interactive process – and devise end dates for the accommodation – to suit changing circumstances based on public health directives.

Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the accommodation (for example, either a specific date such as May 30, or when the employee returns to the workplace part- or full-time due to changes in government restrictions limiting the number of people who may congregate). Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts her at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.

Employees may request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted.

D.8.  May an employer ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace? (4/17/20)

Yes.  Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens.  Employers may begin the “interactive process” – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed.

D.9. Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship? (4/17/20)

Yes.  An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.

D.10. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant difficulty” during the COVID-19 pandemic? (4/17/20)

An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace.  For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking.  Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions.  If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

D.11. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant expense” during the COVID-19 pandemic? (4/17/20)

Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources (always considering the budget/resources of the entire entity and not just its components).  But, the sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration.  Also relevant is the amount of discretionary funds available at this time – when considering other expenses – and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted).  These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic.  For example, even under current circumstances, there may be many no-cost or very low-cost accommodations.

G.1. As government stay-at-home orders and other restrictions are modified or lifted in your area, how will employers know what steps they can take consistent with the ADA to screen employees for COVID-19 when entering the workplace? (4/17/20

The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity.  Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.

Direct threat is to be determined based on the best available objective medical evidence.  The guidance from CDC or other public health authorities is such evidence.  Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.

For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace.  Similarly, the CDC recently posted information on return by certain types of critical workers.

Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion

G.2. An employer requires returning workers to wear personal protective gear and engage in infection control practices.  Some employees ask for accommodations due to a need for modified protective gear.  Must an employer grant these requests? (4/17/20)

An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).

However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.

The Labor and Employment attorneys at Weintraub Tobin continue to wish you and your family the best through this unprecedented time.  If we may be of assistance to you in your employment law needs, feel free to reach out to any of us.

 

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

Posted in FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations

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 an 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.