As California races towards reopening, employers are receiving (often conflicting) guidance on reopening procedures, especially with respect to when a mask is required for vaccinated individuals. In welcome news, it appears the various state agencies are moving towards more uniform policies, which will greatly relieve employers throughout the State.

California Department of Health Guidelines

First, on June 9th, California’s Health and Human Services Agency announced that California would be following the federal CDC guidance with respect to masking. Beginning on June 15th, individuals who are vaccinated are not required to wear a mask in public settings, except where masking of all individuals is required. Those situations include the following circumstances:

  • While on public transit.
  • Indoors in K-12 schools, childcare, and other youth settings.
  • In healthcare settings.
  • In state and local correctional facilities and detention centers.
  • In homeless shelters, emergency shelters, and cooling centers.

The Health and Human Services Agency also provided the following guidance specifically to businesses who welcome the public to their premises. The Agency recommends that such businesses choose one of the following options with respect to masking:

  • Provide information to all patrons, guests, and attendees regarding vaccination requirements and allow vaccinated individuals to self-attest that they are in compliance prior to entry.
  • Implement vaccine verification to determine whether individuals are required to wear a mask.
  • Require all patrons to wear masks.

The Agency made clear that no person can be prevented from wearing a mask as a condition of participation in an activity or entry into a business.

The Public Health Guidance can be found here.

Cal/OSHA Guidelines

On June 4, 2021, we told you that the Cal/OSHA Standards Board approved revisions to the COVID-19 Emergency Temporary Standards that contained controversial masking mandates. Yesterday, the Cal/OSHA Board met again in an emergency session and unanimously voted to rescind those revisions. The Board is expected to review (and possibly vote to adopt) new masking regulations that more fully align with California’s guidelines at their next scheduled meeting, which is on June 17. In the meantime, the emergency regulations adopted in November 2020 will remain in effect. Those regulations can be reviewed here.

At its June 9, 2021, special meeting, the Cal/OSHA Standards Board voted to withdraw the revisions to the Emergency Temporary Standards (ETS) that had been approved at its June 3rd meeting. You can find more information here.

Despite California’s Plan to Reopen on June 15, 2021, The Revised COVID-19 Emergency Temporary Standards Still Impose Restrictions in the Workplace

After an all-day meeting on June 3, 2021, the Cal/OSHA Standards Board approved revisions to the COVID-19 Emergency Temporary Standards (“ETS” or “regulations”). The Board first indicated a vote to reject the revised regulations, but then did a complete 180 and voted unanimously to approve them as a stop-gap measure while its newly-formed Board subcommittee worked to consider further revisions that are more in line with California’s Department of Public Health and  CDC guidelines.

Below are just some of the highlights from the revised ETS:

  • The revised ETS contain some new terms that are relevant when analyzing an employee’s exposure to COVID-19.

o   The term “Close contact” replaces the previous term “COVID-19 exposure.” “Close contact” is defined as “being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the ‘high-risk exposure period’ defined by this section. This definition applies regardless of the use of face coverings.” (§3205(b)(1).)

o   The term “Exposed group” replaces the previous term “Exposed workplace.” “Exposed group” is defined as “all employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the high-risk exposure period.  A common area at work includes bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas.” (§3205(b)(7).)

o   There are certain exceptions where individuals will not be considered to be in the “exposed group” – e.g. where a person momentarily passes through a place where everyone is wearing face coverings, where a person was not present at the same time (e.g. on a different shift) from the COVID-19 case, or where the COVID-19 case visited a work location or area for less than 15 minutes during the high-risk exposure period and everyone was wearing a face covering.

  • The “High-risk exposure period” is defined to mean the following time periods:

o   For COVID-19 cases who develop symptoms, from two days before they first develop symptoms until all the following are true: 10 days have passed since symptoms first appeared; 24 hours have passed with no fever, without use of fever-reducing medications; and symptoms have improved.

o   For COVID-19 cases who never develop symptoms, from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected. Continue Reading Cal/OSHA Update: Don’t Take That Mask Off Just Yet!

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.