On August 7, 2020, the San Francisco Office of Economic and Workforce Development (OEWD) released its guidance on the City of San Francisco’s “Temporary Right to Reemployment Following Layoff Due to COVID-19 Pandemic Emergency Ordinance” (also known as the “Back to Work” Ordinance), which the Board of Supervisors passed on June 23, 2020.  Importantly, the OEWD released template forms on its website that employers may use in reporting layoffs and reemployment offers to the OEWD as required under the Ordinance.

San Francisco employers who have laid off or are considering laying off 10 or more workers as a result of the COVID-19 pandemic should make sure they comply with the new ordinance while it remains in effect.  The Ordinance requires employers operating in San Francisco to offer reemployment to “eligible workers” laid off as a result of the COVID-19 pandemic and the related shelter-in-place/stay-at-home orders in San Francisco when they are rehiring for the same or similar classifications.  The Ordinance also requires that employers provide notice of the layoff and of reemployment offers to both laid off workers and the OEWD.

The Ordinance went into effect on July 3, 2020 and will remain in effect through September 1, 2020, unless the Board of Supervisors extends it.

To read the full article, please click here.

A ruling today by an appellate court gives ride-sharing companies Lyft and Uber roughly two more months to treat their drivers in California as independent contractors.  That ruling follows a recent decision by a trial court in San Francisco that made national news by concluding that those companies had been misclassifying their drivers as non-employees under California law.

The San Francisco County Superior Court issued an injunction on August 10, 2020, ordering Lyft and Uber to begin classifying its California drivers as employees, rather than independent contractors, within ten days.  Complying with that order would require those companies, among other things, to start paying those drivers minimum wage and applicable premium pay for overtime hours.

Lyft and Uber each appealed that order.  In so doing, they threatened to abandon their operations in the Golden State immediately unless the courts stayed the injunction requiring drivers to be classified as employees.  The trial court refused to stay its order.  Today, however, the Court of Appeal ruled (in Case Nos. A160701 and A160706) that the injunction will not be enforced pending the outcome of the two companies’ now-consolidated appeals.

In most civil cases, it generally takes anywhere from one to two years after a litigant appeals before a California appellate court sets the date for the oral argument.  In some cases, the California Court of Appeal has been known to take as long as five years after the notice of appeal to schedule oral argument.  The date of oral argument is important because the California Court of Appeal cannot issue a decision before holding an oral argument if any party requests such a proceeding.

However, the drive on appeal in this case promises to be much shorter.  California’s First Appellate District ordered an expedited briefing schedule, barred any extensions of time except for extraordinary circumstances, and set oral argument to take place less than two months from now, on October 13, 2020.  This all but ensures that, if this briefing and oral-argument schedule is maintained, a decision will be issued no later than mid-January 2021.  Accordingly, the injunction could be on hold until what lawyers and the courts call “the remittitur” issues to the trial court as late as late May 2021.

That is because Article VI, section 19, of the California Constitution bars any judge from being paid a salary “while any cause before the judge remains pending … for 90 days after it has been submitted for decision.”  Section 68210 of the California Government Code also prohibits a judge from being paid a salary unless the judge signs “an affidavit stating that no cause before him [or her] remains pending … for 90 days after it has been submitted for decision.”  A civil case in the Court of Appeal is submitted and becomes pending “when the court has heard oral argument or approved its waiver and the time has expired to file all briefs and papers.”  (Cal. Rules of Court, rule 8.257, subd. (d).)

If the appellate court upholds the trial court’s judgment, it will take effect once the remittitur issues (which take approximately 100 days, unless the appellate court grants rehearing or the California Supreme Court grants review).  Lyft or Uber would have to ask the California Supreme Court to extend the stay of enforcement at that time.

Still, persuading the high court to grant such a reprieve could be difficult.  Indeed, it was the Supreme Court’s landmark ruling just two years ago, in Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, that spurred the state Legislature to pass A.B. 5.  That decision and its resulting legislation drastically curtailed the ability of California employers to classify workers as independent contractors.

Amidst all this litigation, voters will be asked to consider a ballot initiative this November, Proposition 22, that would overturn the Dynamex decision and A.B. 5.  If that ballot fails to pass, Lyft and Uber will be required to comply with the injunction within no more than 30 days after issuance of the remittitur in the appeal, which may be as late as May 2021.  Of course, if voters pass Proposition 22, this litigation may be moot.  Stay tuned, passengers in this case could be in for a bumpy ride.

A blog we published here on May 28, 2020, warned that whistleblower, disability and leave claims against employers may reach a fever pitch as workplaces begin reopening from the COVID-19 shutdown.  A recent audit by the U.S. Department of Labor Office of Inspector General (“OIG”) confirms that some of those types of claims already are spiking.

That OIG report, dated August 14, 2020, and made public this week, found that increases in virus-related complaints may severely impair the ability of the federal Occupational Safety and Health Administration (“OSHA”) to investigate such claims promptly.  “We found the pandemic has significantly increased the number of whistleblower complaints OSHA has been receiving,” the report stated.

In particular, the report indicates that the pandemic has resulted in a 30-percent jump in whistleblower complaints during its first four months as compared to the same period in 2019.  OSHA received about 4,100 whistleblower complaints from February through May 2020, according to the OIG report, and about 1,600 of them were related to COVID-19; for example, claims that an employer retaliated against an employee for reporting violations of rules requiring social distancing or personal protective equipment (“PPE”).

Employees who suffer adverse job actions after reporting such violations to a supervisor or a governmental entity in California are not restricted to filing an OSHA complaint.  Instead, those employees can retain a lawyer and sue their employers for damages in civil court.

At the same time, employers may see an increase in disability or leave claims, or even other types of discrimination claims, as they reopen their businesses or further restrict their operations in response to the pandemic.  Thus, California employers should consider taking the following four steps to reduce the incidence of such costly lawsuits:

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

Second, 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 (e.g., a statute or regulation) or the employee’s complaints about reasonably perceived violations of some public policy.

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

Fourth, 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.

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.  Obtaining early legal advice also may decrease the frequency or cost of these exorbitant types of lawsuits.

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.