Since its implementation on January 1, 2018, The Fair Chance Act has been a source of questions for California employers. Also referred to as “banning the box,” Government Code section 12952 makes it illegal for most employers in California to ask about the criminal record of job applicants before making a conditional job offer. You can refer to our previous blog on the subject here. Continue Reading DFEH Updates “Ban the Box” Regulations and Provides FAQ
The California Department of Fair Employment and Housing (“DFEH”) is the state agency charged with enforcing California’s laws against harassment, discrimination, and retaliation in employment, housing, and business establishments throughout the state. It proclaims on its website that it is “the institutional centerpiece of California’s broad anti-discrimination and hate crimes policy.” According to the DFEH, it is the largest state civil rights agency in the country.
Taking its charge seriously, the DFEH has been busy recently implementing new regulations, creating on-line training, and issuing guidance and FAQs in connection with the various laws it enforces. Below is a summary of some of its most recent activity related to the workplace.
- Fair Chance Act: Criminal History and Employment FAQs. In September, 2020, the DFEH issued its FAQs regarding the California Fair Chance Act (CA Government Code section 12952) which is the “ban the box” law that went into effect on January 1, 2018. The FAQs are written so as to respond to questions that would be posed by an applicant for employment who may have a criminal conviction record, and explains the process an employer must follow under the law before denying employment on the basis of a criminal conviction. While written for applicants, the FAQs provide helpful information for employers.
- On-Line Sexual Harassment Prevention Training. On August 4, 2020, the DFEH announced that it has finally launched the free on-line anti-harassment training for both supervisors and non-supervisory employees pursuant to the mandates of CA Government Code section 12950.1. California law requires all employers of 5 or more employees to provide 1 hour of sexual harassment and abusive conduct prevention training to non-supervisory employees, and 2 hours of sexual harassment and abusive conduct prevention training to supervisors and managers once every two years. The law requires the training to include practical examples of harassment based on gender identity, gender expression, and sexual orientation.
- FAQs Re: Employment and COVID-19. In July, 2020, the DFEH issued its FAQs to provide guidance to employers and employees about how to keep the workplace safe during the COVID-19 pandemic while at the same time upholding civil rights laws. It reiterates that civil rights laws are still in place during the pandemic, but explains how employers may make various inquiries and/or conduct certain health screenings of employees in order to protect the workplace from the spread of the virus.
- LGBTQ Fact Sheet. In June, 2020, the DFEH issued its Fact Sheet concerning LGBTQ rights in employment, as well as in housing and business establishments. The Fact Sheet explains that it is unlawful for employers, landlords, businesses of all kinds, health care providers and insurers, homeless shelters, state funded programs and services, and others to discriminate against anyone or treat them unequally because of their sexual orientation, gender identity, gender expression, or sex.
- Hearing on Hate Violence. Finally, on September 21, 2020, the DFEH’s Fair Employment and Housing Council held a virtual public hearing about hate violence in California. The purpose was to discuss certain interventions to reduce violence motivated by bias against someone’s race, national origin, religion, sexual orientation, gender identity, sex, or other personal characteristic. While the DFEH already has resources to address hate violence, it is likely that further information and resources will be forthcoming given the DFEH’s deeper dive into the subject.
More information on the above recent DFEH resources, as well as others, can be obtained from the DFEH website at: https://www.dfeh.ca.gov/
The Labor and Employment attorneys at Weintraub Tobin have years of experience counseling and defending employers in all areas of employment law, including the civil rights laws enforced by the DFEH. If we can be of assistance to you in your compliance with the law, and/or defense of a claim, feel free to reach out to us. Stay health and safe.
California Gov. Gavin Newsom signed Executive Order N-62-20—way back on May 6, 2020—which created a presumption that employees’ COVID-19-related illnesses were caused at work and therefore covered by workers’ compensation. That order covered COVID-19 infections from March 19, 2020 to July 5, 2020, at which time the order expired. To fill the void, on September 17, 2020, Gov. Newsom signed Senate Bill (“SB”) 1159 and Assembly Bill (“AB”) 685 into law.
SB 1159 resets the rebuttable presumption establishing workers’ compensation benefits for certain employees who contract COVID-19. At the same time, California passed AB 685, which allows the state to more closely track COVID-19 cases in the workplace by requiring employers to timely report COVID-19 related exposure information to the California Division of Occupational Safety and Health (“Cal/OSHA”). AB 685 also requires employers to provide notice to employees of workplace COVID-19 exposures.
To read the full article, please click here.
On Thursday, Governor Newsom signed Senate Bill 1383, dramatically expanding the California Family Rights Act (“CFRA”), and the obligations it places on employers to provide leave to eligible employees. As a reminder, the CFRA is California’s leave statute, which authorizes eligible employees to take up a total of 12 weeks of unpaid job-protected leave during a 12-month period. While on leave, employees keep the same employer-paid health benefits they had while working.
Historically, the CFRA has applied to employers employing at least 50 employees. SB 1383 expands the CFRA to employers throughout the state who employ 5 or more employees. In addition, SB 1383 expands the definition of a “family member” to include adult children, siblings, grandparents, grandchildren and domestic partners. The changes go into effect on January 1, 2021.
Expansion to Smaller Employers
Under SB 1383, the CFRA will now apply to much smaller employers, and specifically, all employers with 5 or more employees. Traditionally, in determining whether the employer was a covered employer under the CFRA, it had to employ 50 or more employees within a 75-mile radius. SB 1383 eliminates that provision. This means that, as of January 1, 2021, for an employee to be eligible for leave, he/she will only need to meet the following requirements:
- Worked for the employer for at least 12 months of service (can be nonconsecutive work for employer over a 7-year period, except that any military leave time while employed counts towards this 12 months of service); and
- Worked at least 1,250 hours in the 12-month period prior to taking CFRA leave.
Expanded Definition of “Family Members”
The CFRA currently allows employees to take unpaid leave for a number of purposes, including to care for a “family member” with a serious health condition. CFRA currently defines “family member” to include a minor child (unless the child is an adult and a dependent child), a spouse, or a parent.
SB 1383, however, significantly expands the definition of what constitutes a “family member.” Under the revised language, a “family member” also includes siblings, grandparents, grandchildren, and domestic partners. The definition of “child” is further expanded to cover all adult children, as well as children of a domestic partner.
Additional Changes to the CFRA Employers Should be Aware of
There are several additional components of SB 1383 that California employers should be aware of:
- SB 1383 removes the provision of the CFRA that permitted employers to refuse to provide the full 12 weeks of “parental” leave associated with the birth, adoption or foster care placement of a child, when both parents worked for the same employer. Going forward, an employer will likely be required to provide eligible employees with 12 weeks of parental leave, even where both parents work for the same employer.
- SB 1383 also requires employers to provide leave due to a qualifying exigency related to active duty or a call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.
- SB 1383 removes the “key employee” provision, which allowed an employer to refuse reinstatement to salaried employees who were among the highest 10% of the employees, if the refusal was necessary to prevent economic injury.
- SB 1383 repeals the New Parent Leave Act, which was implemented in 2018 to provide parental leave to employers with 20-49 employees. Given the expanded coverage of the CFRA, the New Parent Leave Act was deemed unnecessary.
Next Steps for Employers
SB 1383 goes into effect on January 1, 2021. That leaves California employers a bit more than three months to prepare. Employers (both small and large) should review their policies to ensure compliance with the revised CFRA, and for most employers that likely means issuing new policies and/or handbooks that comply with the new provisions. Employers should also train their supervisors and HR personnel to ensure they are properly prepared to administer the new leave requirements.
Do not hesitate to contact your Weintraub Tobin employment attorney with any questions you have interpreting SB 1383 and/or determining how it applies to you.
On September 11, 2020, the United States Department of Labor issued revised regulations governing the Families First Coronavirus Response Act (FFCRA). The regulations implement the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) provisions of the FFCRA. The revised regulations were issued to address a decision from a federal court in New York that invalidated previous regulations concerning whether work must otherwise be available to employees seeking to use leave under EPSLA and EFMLEA and whether an employer must consent to intermittent leave. The revised regulations also clarify and narrow the definition of “health care provider” under the FFCRA and address medical documentation requirements employees must meet to be eligible to take leave.
Refresher on FFCRA
In March 2020, at the outset of the COVID-19 pandemic, Congress enacted the FFCRA. We initially blogged about the FFCRA here. In short, the FFCRA requires employers with 500 or fewer employees to offer up to 2 weeks of EPSLA leave to employees who miss work for qualifying reasons relating to the pandemic. Where the need to miss work results from the employee’s need to stay home with a child whose school or childcare facility is closed due to the pandemic, employees may take up to 12 weeks of paid and unpaid leave under EFMLEA. The first two weeks of EFMLEA leave are unpaid, but employees seeking pay could choose to use EPSLA leave or any other paid leave otherwise available to the employee such as state law sick leave or any accrued paid vacation benefits. The last 10 weeks of EFMLEA leave are paid. Employers may receive a tax credit for any leave paid out under the FFCRA. Unless extended, the FFCRA is set to expire at the end of 2020.
New York Opinion Invalidates Certain FFCRA Regulations
Last month, in response to a challenge brought by the New York Attorney General, a federal court struck down four provisions of the FFCRA’s prior regulations. Specifically, the court struck down regulations requiring work to be otherwise available to employees before they can qualify for EPSLA or EFMLEA, requiring employees to obtain employer approval before taking intermittent leave, and requiring employees to provide medical documentation regarding the reasons for leave “prior to” taking the leave. Finally, the court struck down as overbroad the FFCRA’s definition of “health care provider” as used to determine those health care providers who were ineligible for the leave.
The Revised Regulations
Following the New York ruling, the DOL was widely expected to issue revised regulations addressing the items the court raised. The September 11, 2020 DOL release does just that. According to the DOL’s news release, found here, the revisions do the following:
- Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
- Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
- Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
- Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
- Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.
Work Availability Requirement
The DOL’s position that work must be available to an employee seeking to take leave reflects a doubling down on their regulation that the court struck down. Recognizing the court’s opinion that the prior regulation lacked sufficient analysis of why work must be available to the employee, the DOL provided that analysis. The DOL clarified that when work is unavailable due to circumstances other than a FFCRA-qualifying reason, such as when an employee is furloughed or the business is temporarily shut down, there is no work available from which an employee can take leave.
The DOL further explained that “leave is most simply and clearly understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave.” In those circumstances, an employee’s recourse may instead be to file for unemployment insurance benefits. The revised regulation does, however, make clear that employers cannot withhold work in order to avoid paying EFMLEA or EPSLA. Instead, work must be unavailable for legitimate business reasons.
Employer Consent to Intermittent Leave
Just as with the work availability requirement, the New York court struck down the requirement that employees taking intermittent EPSLA or EFMLEA leave must obtain employer consent because, according to the court, the DOL’s initial rule lacked sufficient analysis and explanation for the requirement. Again, the DOL doubled down on its prior rule while providing much more detailed reasoning for it. The DOL noted that the FMLA provides for intermittent leave only for qualifying reasons, such as medical necessity and employer/employee agreement. Because the FFCRA is silent on employees’ ability to take intermittent leave, and because the “medical necessity” basis for leave under the FMLA does not fit within the EFMLEA framework, the DOL concluded that it had discretion to balance employees’ need for leave with employers’ need to avoid business disruptions. It balanced those competing interests by requiring employees to obtain employer consent to take intermittent leave.
Narrowed Definition of Health Care Provider under Exemption
The FFCRA exempts employers from offering EFMLEA or EPSLA to certain health care providers. The previous definition, which the New York court struck down as too broad, included “anyone employed at” any location “where medical services are provided.” This could have included those workers at the facilities who did not even provide healthcare services, such as IT staff, human resources, or kitchen workers. Under the revised rule, “[a] person is not a health care provider merely because his or her employer provides health care services or because he or she provides a service that affects the provision of health care services.” Rather, the employee must meet the definition of healthcare provider under the FMLA (essentially, those workers who directly provide the healthcare services), or those who are “employed to provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.”
Notice and Documentation Requirements
Under the prior rules, struck down by the New York court, employees were required to provide employers with notice of the need for FFCRA leave, and documentation supporting the need for leave, prior to being eligible. Under the revised regulation, employees are now only required to provide notice and documentation “as soon as practicable.” The DOL did note, however, that in the cases of employees needing leave due to a child’s school closure, the leave will almost always be foreseeable in advance and should therefore be provided prior to the leave being taken.
Takeaway for Employers
For now, employers can follow the new DOL regulations in administering FFCRA leave. That means employers are not obligated to provide EFMLEA or EPSLA leave to employees who are furloughed or are otherwise unable to work for reasons that do not relate to the COVID-19 pandemic. Employers may also decide whether to allow employees intermittent leave under the FFCRA. Such decisions, however, should be made for legitimate business reasons and applied consistently to avoid the risk of discrimination claims. Employers in the healthcare industry may utilize the updated definitions of healthcare provider in assessing whether employees are eligible for FFCRA leave. Finally, employers should not require employees to provide notice and documentation supporting their need for FFCRA leave any earlier than is practicable under the circumstances.
Employers should also watch for future developments around these regulations. First, it is not yet known whether they will be subjected to any further court challenges and, if so, what the outcome of those challenges will be. Employers should also monitor whether Congress elects to extend the FFCRA, with or without modifications, beyond its current expiration date of December 31, 2020. Employers with any uncertainty in these areas should work with their legal counsel to assure their practices and policies are compliant.