The CDC has issued new guidance for in-home patients diagnosed with COVID-19, including lowering the number of days the patient must remain isolated after being fever-free. The CDC previously recommended that “at least 72 hours” pass since the last fever without the use of fever-reducing medication before ending self-isolation. Noting “accumulating evidence” and ongoing research into COVID-19 treatment, the CDC lowered the recommended isolation to “at least 24 hours.”

Researchers have further reported that people with mild to moderate COVID-19 symptoms remain infectious for no longer than 10 days after their symptoms begin, while those who are hospitalized with more severe symptoms and/or severely immunocompromised conditions can remain infectious no longer than 20 days after their symptoms begin.

Based on these and other findings (detailed more fully here), the CDC updated its recommendations for discontinuing home isolation. If an employee is diagnosed with COVID-19, or the doctor believes they have COVID-19, and the employee was directed by a doctor to care for themselves at home (or otherwise outside a hospital setting, e.g. in a hotel, dormitory or isolation facility), the new CDC guidance is that such persons may discontinue isolation under the following conditions:

  • At least 10 days have passed since symptom onset, and
  • At least 24 hours have passed since resolution of fever without the use of fever-reducing medications, and
  • Other symptoms have improved.

As with most other CDC guidance, this change may be adopted by state and local health departments so it is wise to check with your local, county and state health departments for further direction.

On July 16, 2020, the DOL issued new model FMLA notices and forms with a June 2020 revision date.  The look of the notices and forms are somewhat different from previous versions but there are not a lot of substantive changes.  The DOL also issued some FAQs in connection with the release of the updated forms explaining that the FMLA does not require the use of any specific form or format, and that even though the DOL revised the FMLA forms to make them easier to understand, the revised forms convey and collect the same information which can be provided in any format.

The DOL’s FAQs also address the following questions:

Can my employer require me to provide a new certification, using the revised form, when I have already provided the required FMLA information using the old certification form?

No. You can provide the required information contained on a certification form in any format. If you used the old certification forms to provide your employer with the required FMLA information, you do not have to provide your employer with the same FMLA information using the revised certification forms.

Can my employer make changes to the FMLA forms?

Your employer may use the WHD prototype forms or create their own version of the forms containing the same basic information. However, an employer that requests a medical certification may request only information that relates to the serious health condition for which the current need for leave exists, and no information may be required beyond that specified in the FMLA regulations. See 29 CFR 825.306, 29 CFR 825.307, and 29 CFR 825.308.

Do I have to use my employer’s certification forms?

Employers must accept a complete and sufficient certification, regardless of the format. The employer cannot reject a certification that contains all the information needed to determine if the leave is FMLA-qualifying. The employer cannot refuse:

    • A fax or copy of the certification;
    • A certification that is not completed on the employer’s standard company form; or
    • Any other record of the medical documentation, such as a communication on the letterhead of the healthcare provider.

The expiration date of the DOL forms has passed, are they still effective?

Yes. The content of the information contained within the optional-use DOL form is still applicable, regardless of the expiration date. The expiration date on the DOL forms is related to the collection of information as required by the Office of Management and Budget (OMB), and not relevant to the content of the required information.

Where do I send the completed certifications or notices?

Do not send any completed certifications or forms to the U.S. Department of Labor, Wage and Hour Division. The employer should provide the required notices to the employee seeking leave. Completed certification forms should be given to the employee to provide to the employer, as it is the employee’s responsibility to provide the employer with the completed certification.

For more information about the DOL’s updated FMLA notices and forms, or to obtain copies, go to: https://www.dol.gov/agencies/whd/fmla/forms.

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 in any of your employment law needs, feel free to reach out to us.

The California Department of Public Health (“CDPH”) issued its “COVID-19 Employer Playbook” on July 24, 2020 in an effort to provide employers with a comprehensive guide related to COVID-19 as employers reopen their business. According to the CDPH, by following the Employer Playbook, employers will be able to do their part in reducing the risk and spread of COVID-19 in the workplace, and ensure that California businesses stay open. The subjects covered in the Playbook include how to open safely; what to do if there is a case of COVID-19 in the workplace; worker education; and enforcement and compliance. The Playbook contains many links to various employer and worker resources, as well as case studies to help illustrate the importance of implementing proper social distancing and safety measures.

You can obtain a copy of the CDPH’s Employer Playbook at: https://files.covid19.ca.gov/pdf/employer-playbook-for-safe-reopening–en.pdf

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

The U.S. Supreme Court handed down two decisions yesterday that affect religious employers.

In the first, Our Lady of Guadalupe School v. Morrissey-Berru, the Court held that the “so-called ministerial exception” applies more broadly, preventing courts from intervening in disputes between schools “with a religious mission” and any “teacher [entrusted] with the responsibility of educating and forming students in the faith.” The Supreme Court reversed two decisions by the Ninth Circuit Court of Appeals (our federal appellate circuit in California), where the religious employers had won summary judgment in the trial court, only to have those judgments reversed by the Ninth Circuit.

Instead of the Ninth Circuit’s narrow definition, the Supreme Court emphasized the breadth of its prior description of the ministerial exception, which “should apply to any ’employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.” The Court also repeatedly admonished lower courts to be aware that judges are unlikely “to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition” and not to “second-guess” religious employers’ explanation of their employees’ role, which “would risk entanglement in religious issues.”

This decision provides a strong platform for religious employers facing employment discrimination claims, and lower courts (which had already ruled in both of these employers’ favor) will certainly get the message that the ministerial exception should be applied broadly.

In the second decision, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the Court held that two regulations promulgated by the U.S. Departments of Health and Human Services, Labor, and the Treasury under the Patient Protection and Affordable Care Act of 2010 (sometimes called “Obamacare,” but which I will call the “ACA,” for short) were validly enacted. The regulations in question exempted employers with “sincerely held religious beliefs” or “sincerely held moral objections” from complying with other regulations issued under the ACA requiring health insurance plans to provide coverage for all Food and Drug Administration-approved contraceptive methods (i.e., birth control).

The states of Pennsylvania and New Jersey sued, alleging the rules violated the ACA and failed to comply with the required procedures for implementing new regulations (like the immigration regulations regarding “Dreamers” that the Supreme Court recently invalidated on procedural grounds). Initially, a federal district court issued a nationwide injunction prohibiting courts from granting employers relief based on the exemptions, which the Third Circuit affirmed, finding the Departments lacked the authority to issue the regulations and had a bad attitude about the notice and comment process. The Supreme Court found the two birth control exemptions were authorized by the ACA and free from procedural defect, reversing the lower courts and upholding the exemptions for employers.

 

Weintraub Tobin’s 2020 Labor and Employment Seminar and Training schedule has been recently updated and is now available.  Click here for a pdf version of the schedule.

If you have any questions on any of our seminars or would like to inquire about private, custom-tailored training, please contact:

Ramona Carrillo

(916) 558-6046

rcarrillo@weintraub.com