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.

 

 

 

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.

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.

 

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.

 

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.