“Fomite” is a medical term that refers to inanimate objections that can carry infectious agents to a new host.  The concept of a fomite in the medical context is a valuable concept that can be applied in management, human resources, and employment context.  It is critical for companies and managers to apply the lessons from fomites in the medical context to the employment context and in developing a company culture:

1. What are fomites in the employment context?

The medical concept of a fomite has many similar applications and lessons for managers.  The effect that fomites in the employment context can have on a workplace culture is enormous, and being able to recognize the difference between a fomite and a virus in the employment context is critical.  Just to be clear – I’m not referring to “fomites” in the medical sense, but am borrowing the term to use in a managerial, human resources, and employment context.

2. Fomites can take many forms in the workplace.

Items that can negatively impact the workplace (which I’ll borrow another medical term and refer to as contagion) can spread through different ways.  The fomite that spread this contagion in the workplace can take many types of forms: other employees, managers, issues, gossip, clients, workplace habits, how meetings are run, and workplace culture.  Fomites, as I use the term here, does not only have to be people, but it could also refer to ideas or practices in the workplace.  Unlike how the term is used in the medical context which refers to inanimate objects, fomites in the workplace can also be an idea or practice.

3. Fomites are not ill-intentioned.

It is important to note that a fomite is not the disease or germ that it is carrying.  The co-worker, employee, or supervisor is not the disease or virus, but they are the ones that are carrying the contagion.  Managers need to remember that the contagion, not the fomites, need to be attacked and eradicated.  Just as in the medical context, the fomite itself is not the virus, but it is instead something that is carrying the virus.

Also, in terms of personnel, fomites are not necessarily toxic employees.  Toxic employees hurt the work environment and company culture and need to be removed from the workplace.  Employees can be fomites when they act a certain way, say certain things, or fall into certain habits without consciously doing so, and this negatively impacts company culture.  However, it may be difficult to distinguish between a fomite and a toxic employee, and managers need to be careful in making this determination.

4. Fomites can spread contagion from outside of the workplace.

Like the medical context, in the employment arena fomites can bring contagion from outside of the workplace in to hurt company culture and employee morale.  Personal issues at home can have negative impacts at work.  Similarly, current events and politics can carry over from outside the employment environment into a company and negatively impact the workplace.  Managers must be careful to keep fomites from bringing outside viruses into the workplace.  However, just like a healthy immune system is exposed to some viruses, a workplace cannot be completely sterile, and a company culture must have some exposure to viruses to build an immunity.

5. Fomites can be critical to the company.

Just as in the medical context, fomites can be items that are critical to a company.  For example, in medical terms, skin is a fomite.  In the employment context, a manager can be a fomite.  Just as a body cannot survive without its skin, a company cannot survive without managers.  The key with recognizing fomites in the employment context is to recognize that it is not the managerial position or person filling that position that needs to be removed.  Companies must protect against the virus, not the fomites.

The California supreme court provided further guidance on employer obligations to provide meal breaks as required under the Labor Code and applicable Wage Orders.  In Donohue v. AMN Services LLC, the California supreme court held that employers may not use time rounding policies in context of meal periods, and time records for meal periods that are incomplete or inaccurate raise a rebuttable presumption of meal period violations.  Here are five key takeaways from the opinion for California employers:

1. Reminder of meal break timing requirements

The California supreme court reiterated that, as it set forth in Brinker Restaurant Corp. v. Superior Court (2012), “employers must generally provide ‘a first meal period [of at least 30 minutes] no later than the end of an employee’s fifth hour of work, and a second meal period [of at least 30 minutes] no later than the end of an employee’s 10th hour of work.”  And that an employer “satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. . . .  [¶]  . . . [T]he employer is not obligated to police meal breaks and ensure no work thereafter is performed.”

Under Brinker, “[t]here is no meal period violation if an employee voluntarily chooses to work during a meal period after the employer has relieved the employee of all duty.”

2. Time rounding for meal breaks is not permitted under California law

The California Court of Appeal held in See’s Candy Shops, Inc. v. Superior Court (2012) that employers may use time rounding policies to calculate regular and overtime wages “if the rounding policy is neutral on its face and as applied.”  The supreme court noted that it has “never decided the validity of the rounding standard” set forth in See’s Candy, but even assuming the holding is valid, such a rounding policy in regards to meal periods “does not comport with its neutrality standard.”  The supreme court explained that in context of regular and overtime wages, a rounding policy “averages out” and it is possible that employees are “fully compensated over a period of time.”

In contrast, when viewed in the meal break context, an employee’s 30-minute meal break could lose 9 minutes due to rounding, which amounts to nearly a third of the meal break.  If an employee is not provided a full 30-minute meal break because of rounding, there is no mechanism that makes up for the premium pay owed to the employee that would average out over time.  The supreme court held, “The precision of the time requirements set out in Labor Code section 512 and Wage Order No. 4 — “not less than 30 minutes” and ‘five hours per day’ or ‘ten hours per day’ — is at odds with the imprecise calculations that rounding involves.  The regulatory scheme that encompasses the meal period provisions is concerned with small amounts of time.”

3. Rebuttable presumption against employer if time records show meal period violations

The supreme court explained that if an employer’s “time records show missed, short, or delayed meal periods with no indication of proper compensation, then a rebuttable presumption arises.”  The court explained that a rebuttable presumption arises against the employer if “time records show missed, short, or delayed meal periods with no indication of proper compensation.”  The “proper compensation” referred to by the court is the premium pay of one hour of pay at the employee’s regular rate of pay for each workday that the meal period is not provided.  The court explained that, “Employers can rebut the presumption by presenting evidence that employees were compensated for noncompliant meal period or that they had in fact been provided compliant meal periods during which they chose to work.”

What type of evidence could employers use to rebut this presumption?  The court explained that representative testimony, surveys and statistical analysis are some types of evidence that employers could present to rebut the presumption.  In addition, employee attestation forms that they received their meal breaks may also be evidence as explained below.

4. Potential use of employee acknowledgements confirming breaks were taken

The supreme court explained that if an employer’s records do not show a compliance meal break was taken by the employee, it may be possible for the employer to use electronic attestations at the time an employee does not take a full meal break, a late meal break, or misses a break in order to ensure accurate tracking.

In Donohue, the employer’s timekeeping system provided a dropdown menu that prompted the employee to choose one of three options:

  1. “I was provided an opportunity to take a 30 min break before the end of my 5th hour of work but chose not to”;
  2. “I was provided an opportunity to take a 30 min break before the end of my 5th hour of work but chose to take a shorter/later break”;
  3. “I was not provided an opportunity to take a 30 min break before the end of my 5th hour of work.”

The employee was required to choose an option by the end of the pay period, and if the employee selected item #3, they were paid a premium wage for the missed break.  The supreme court explained that this procedure “would have ensured accurate tracking of meal period violations if it had simply omitted rounding.”

5. Potential use of biweekly certifications by employees that they received meal periods

The employer in Donohue also argued that its biweekly certifications signed by employees show there were no meal period violations.  The certification stated:

I was provided the opportunity to take all meal breaks to which I was entitled, or, if not, I have reported on this timesheet that I was not provided the opportunity to take all such meal breaks.

Because the employer used time rounding to record the meal periods, the plaintiff argued that these certifications were not valid as the employees were not on notice of potential violations.  In addition, plaintiff argued that the certification “should be discounted because employees had to sign them to get paid.”  The court did not rule on the effect that the certification would have in this case and left the issue to be addressed by the trial court on remand.  However, it does raise considerations for employers to review the use of certifications that can be used as evidence to rebut the presumption of any time records showing potential meal period violations.

(Thanks to Veenita Raj who co-wrote this week’s Friday’s Five)

An employer’s obligation to provide mandatory paid sick and family leave under the Families First Coronavirus Response Act (FFCRA) ended on December 31, 2020.  The FFCRA applies to employers with 500 or fewer employees.  The payroll tax credits for employers who voluntarily decided to continue providing FFCRA leave were expanded through March 31, 2021.  The American Rescue Plan Act (ARPA), effective on April 1, 2021, extends the tax credits for employers who voluntarily continue or start providing Emergency Paid Sick Leave (Paid Sick Leave) or Emergency Family Medical Leave (Family Leave) through September 30, 2021.   ARPA also makes several other key changes to both the FFCRA’s Paid Sick Leave (which provides two weeks/up to 80 hours of paid leave) and Family Leave provisions (which originally provided up to 10 weeks of paid Family and Medical Leave).  Here are five key impacts California employers must be aware of:

1. Changes to the Emergency Paid Sick Leave Requirements

ARPA resets the 10-day/80-hour limits for Paid Sick Leave starting April 1, 2021. This means that if employees previously exhausted their entitlement to Paid Sick Leave under the FFCRA, they now have another 10 days/80 hours to use.  However, any paid sick leave not used before April 1, 2021 does not roll over.

ARPA adds three (3) qualifying reasons for Paid Sick Leave, which are:

  • Obtaining a COVID-19 vaccine,
  • Recovering from any illness or condition related to the COVID-19 vaccine, or
    • Seeking or awaiting the results of a COVID-19 diagnosis or test if either the employee has been exposed to COVID-19 or the employer requests the test or diagnosis.

2. Changes to the Emergency Family Medical Leave Requirements

With regard to Family Leave, the ARPA made the following changes:

  • Increased the number of paid weeks available to employees from ten (10) weeks under the FFCRA to twelve (12) weeks by removing the initial two-week unpaid period.  This means that if an employee qualifies for family leave, he/she is eligible for 12 weeks of paid leave, assuming he/she has not previously used any family leave time.
  • Increased the total paid leave tax credit available to employers for Family Leave from $10,000 to $12,000, meaning that employers can now take an additional $2,000 in payroll tax credits per employee.
  • Expanded the qualifying reasons to use Family Leave. Previously, leave could only be taken by employees caring for children whose schools or place of care was closed, or whose care provider was unavailable for reasons related to COVID-19.  However, starting on April 1, 2021, qualifying reasons for Family Leave also include any of the Paid Sick Leave qualifying reasons.  If an employee qualifies for Paid Sick Leave and needs leave beyond the 10-day/80-hour entitlement for Paid Sick Leave, the employee could take up to an additional 12 weeks of Family Leave.  Therefore, after April 1, 2021, an employee could potentially take up to a total of 14 weeks of paid FFCRA leave.

 3. Caps on Payroll Tax Credit

A $511 tax credit per day, per employee, at the employee’s regular rate of pay, is available for employers providing voluntary Paid Sick Leave if the employee:

  • Is on leave because of any of the newly added qualifying reasons,
  • Is subject to a governmental quarantine or directed to quarantine by a medical care provider, or
  • Has COVID-19 symptoms and is seeking a diagnosis.

On the other hand, if the employee is taking leave for any of the remaining Paid Sick Leave qualifying reasons, the payroll tax credit is limited to two-thirds of the employee’s regular rate of pay and is capped at $200 a day.

4. Non-Discrimination Provision

The American Rescue Plan also added a non-discrimination provision for both Paid Sick Leave and family leave.  If an employer opts to voluntarily provide FFCRA leave and discriminates with respect to leave:

  • In favor of highly compensated employees,
  • In favor of full-time employees, or
  • Based on employment tenure, then the employer will not be able to obtain tax credits for any leave paid under the FFCRA framework.

Considering the above, employers who decide to continue or start providing the voluntary FFCRA leave should make sure that the leave is being offered to all employees.

5. California Employers May be Eligible for FFCRA Tax Credit When Providing California 2021 Supplemental COVID-19 Paid Sick Leave under SB 95

As we have written about previously (here and here), California enacted SB 95 that requires employers with more than 25 employees to provide supplemental COVID-19 paid sick leave to qualifying employees.  SB 95 is retroactive to January 1, 2021.  California’s SB 95 paid sick leave requirement does not provide a tax credit for this paid leave requirement.  However, SB 95 does permit employers to take credit for “any federal or local law in effect or that became effective on or after January 1, 2021.”  This credit does not include any paid sick leave required under California’s Healthy Workplaces, Healthy Families Act of 2014.  Moreover, this credit only applies if the paid leave is provided to the employee at the same rate required under SB 95 and for the same qualifying reasons as established by SB 95.

Therefore, it is possible for employers (who have more than 25 but fewer than 500 employees) to receive a tax credit for paid sick leave to the extent an employer is required to provide paid leave under California’s SB 95 and the paid leave qualifies as voluntarily leave under the FFCRA (which does provide a tax credit for qualifying leaves).  However, employers must be careful in this regard, as SB 95’s qualifying reasons for leave do not exactly match up with the FFCRA’s qualifying reasons for leave.  For example, SB 95 requires paid sick leave for employees who are “subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace.” (emphasis added) The FFCRA provides a similar, but much more narrow qualifying reason for an “employee who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.”  In addition, SB 95 requires employers to pay the full rate for employees for all qualifying reasons, while the FFCRA only permits a tax credit of two-thirds of the employee’s pay when they are caring for another person.  Therefore, employers must carefully review the interplay between the qualifying reasons and the rate of pay calculations between SB 95 and the FFCRA when evaluating the potential for claiming tax credits for paid sick leave provided.

Legislation at the federal and state level this month changed many paid sick leave regulations for California employers.  California employers could be subject to at least five different paid sick leave laws spanning federal law, state law, state-regulations, and local government regulations.  As employers reopen in California, it is important to review the various paid sick leave requirements to understand which ones apply to your business to ensure compliance.

1. Families First Coronavirus Response Act (FFCRA)

The FFCRA enacted under the Trump administration on March 19, 2020 expired on December 31, 2020.  The Consolidated Appropriations Act of 2021 permitted employers to take a tax credit who continued to voluntarily provide paid FFCRA leave to employees through March 31, 2021.  The American Rescue Plan of 2021 passed on March 11, 2021, extended the payroll tax credits for qualifying leave that is voluntarily paid by employers through September 30, 2021.  The FFCRA and these extensions for the tax credits for the voluntary paid leave applies to employers with fewer than 500 employees.  The FFCRA does not require employers to provide paid sick leave in 2021, but employers who are voluntarily providing the paid sick leave for qualifying reasons are eligible for a tax credit for this paid leave.

2. 2021 California Supplemental Paid Sick Leave

Governor Newsom signed new legislation on March 19, 2021 requiring California employers to provide COVID-19 supplemental paid sick leave.  The new law applies to employers with more than 25 employees, expands the list of covered reasons for the paid leave from the old 2020 requirements, applies for all leave taken by employees in 2021 (upon verbal or written request by an employee, employers must pay for leave retroactively to January 1, 2021), must update and provide notice to employees on their pay stubs of the new amounts of supplemental paid sick leave the employee is entitled to at the end of the first full paid period following March 29, 2021, and there is a new posting requirement.

3. Cal/OSHA Emergency Temporary Standards (Cal/OSHA ETS)

On November 30, 2020, California’s Office of Administrative Law approved Cal/OSHA’s emergency standards setting forth new requirements for California employers. Under the new requirements, employers must develop a written COVID-19 prevention program, train employees, provide personal protective equipment to employees, provide certain information to employees, and abide by record keeping and new reporting requirements.  In addition, the Cal/OSHA ETS requires employers to provide “exclusion pay” to employees under certain circumstances.

4. Local County and City COVID-19 Paid Sick Leave Ordinances

Many local county and city governments have enacted their own COVID-19 paid sick leave requirements as well, including:

  • Los Angeles County:
    • Extended until 2 weeks after the expiration of the COVID-19 local emergency declared in March 2020
    • Applies retroactively to business starting on January 1, 2021.
  • Los Angeles City: Extended until 2 weeks after the expiration of the COVID-19 local emergency declared in March 2020
  • Long Beach City: Reviewed every 90 days and still in force.
  • Oakland City: Extended until the end date of Oakland’s COVID-19 emergency declaration
  • City of Sacramento: Expires on March 31, 2021
  • San Francisco County and City: Both extended until April 12, 2021
  • City of San Jose: Expires on June 30, 2021
  • San Mateo County: Expires on May 1, 2021
  • City of Santa Rosa: Expires on March 31, 2021
  • Sonoma County: Expires June 30, 2021

5. California’s Healthy Workplaces, Healthy Families Act of 2014 and Local Paid Sick Leave Ordinances

California’s paid sick leave law, the Healthy Workplaces, Healthy Families Act of 2014, became effective on January 1, 2015.  The law requires employers of all sizes to provide 1 hour of paid sick leave for every 30 hours worked or another approved method.  Employer may cap the accrual of paid sick leave at 48 hours and cap the use of paid sick leave at 3 days or 24 hours, whichever is greater, within a 12-month period.

Some local governments also have their own paid sick leave requirements employers must comply with.  These requirements were in place pre-COVID-19.  Some examples of cities in Southern California with their own requirements include:

As written about previously, Governor Newsom signed new legislation on March 19, 2021 requiring California employers to provide COVID-19 supplemental paid sick leave.  California employers were required to provide California COVID-19 supplemental paid sick leave under an old law passed in 2020 that expired on December 31, 2020.  There are a few key differences between the old requirements and the new 2021 COVID-19 Supplemental Paid Sick Leave just enacted, and California employers need to beware of these new requirements.  Below are a few of the new key provisions of the 2021 COVID-19 Supplemental Paid Sick Leave:

2021 COVID-19 Supplemental Paid Sick Leave Requirements Apply to California Employers With More than 25 Employees.

The new 2021 COVID-19 supplemental paid sick leave requirements apply to employers with more than 25 employees.  The old California supplemental paid sick leave law applied to employers with 500 or more employees.

Expanded List of Covered Reasons.

Old COVID-19 SPSL – Qualifying Reasons for employees unable to work due to any of the following reasons: New 2021 COVID-19 SPSL – Qualifying Reasons for employees unable to work or telework due to any of the following reasons:
1. The covered worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19. 1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace. If the covered employee is subject to more than one of the foregoing, the covered employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidelines that provides for the longest such minimum period.
2. The covered worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19. 2. The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The covered worker is prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19. 3. The covered employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
4. The covered employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
6. The covered employee is caring for a family member who is subject to an order or guidelines or who has been advised to self-quarantine.
7. The covered employee is caring for a child, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Applies Retroactively to January 1, 2021.

The new law applies retroactively to January 1, 2021.  The Labor Commissioner’s FAQs explains:

The requirement to provide “retroactive” 2021 COVID-19 Supplemental Paid Sick Leave does not start until March 29, 2021. This “retroactive” payment is only required if the covered employee makes an oral or written request to be paid for leave that qualifies (as described above).

For example, if a covered employee had to take two hours off for a vaccine appointment on February 15, 2021, the employee can make an oral or written request to the employer to be paid for that time off in February, since it is a qualifying reason for taking 2021 COVID-19 Supplemental Paid Sick Leave.  The oral or written request must be made on or after March 29, 2021. A request made before March 29 does not count.  If an employee is unable to make the request themselves or has difficulty locating an employer to provide proper notice, they may contact the Labor Commissioner’s Office, which may be able to provide assistance.

After the employee makes the request, the employer will have until the payday for the next full pay period to pay the “retroactive” 2021 COVID-19 Supplemental Paid Sick Leave. On that payday, the employer must also provide accurate notice on the itemized wage statement of how many 2021 COVID-19 Supplemental Paid Sick leave hours remain available to the covered employee.

Employers Must Post New Poster.

The Labor Commissioner published the new 2021 COVID-19 Supplemental Paid Sick Leave required notice on its website.  Employers are required to post this notice in a location where employees can easily read it.  If employees do not visit a physical location, employers may distribute it electronically.

Update: Governor Newsom signed SB-95 on March 19, 2021.  Therefore, employers have until March 29, 2021 to ensure compliance with the new requirements. 

California’s supplemental paid sick leave for employees and food sector employees expired on December 31, 2020.  Just as California businesses are starting to reopen, California’s legislature passed and presented to Governor Newsom today (March 19, 2021) a new supplemental paid sick leave bill (SB-95) extending paid sick leave for California employees until September 30, 2021. Unlike the prior California COVID-19 paid sick leave law that applied to employers with more than 500 employees, the new law expands coverage to employers with more than 25 employees.  Here are five issues California employers need to know about the new paid sick leave law if Governor Newsom signs the bill (which is expected):

1. Covered employers

The new law would apply to employers with more than 25 employees. If signed by the Governor, the law requires the Labor Commissioner to made available within 7 days a poster required for employers to post in their workplaces.

The law also sets forth requirements for in-home supportive services, which is not addressed in this article.

2. Effective time period

The law retroactively applies to employers going back to January 1, 2021.  The law expires on September 30, 2021.

3. Qualifying reasons for paid sick leave

The law requires employers to pay COVID-19 supplemental paid sick leave to employees who are unable to work or telework due to any of the following reasons:

  1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace. If the covered employee is subject to more than one of the foregoing, the covered employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidelines that provides for the longest such minimum period.
  2. The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. The covered employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
  4. The covered employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
  5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. The covered employee is caring for a family member, as defined in subdivision (c) of Section 245.5, who is subject to an order or guidelines described in subparagraph (A) or who has been advised to self-quarantine, as described in subparagraph (B).
  7. The covered employee is caring for a child, as defined in subdivision (c) of Section 245.5, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

4. Amount of paid sick leave required

Employees are entitled to 80 hours of COVID-19 supplemental paid sick leave if they are considered full time, or if the employee worked or was schedule to work, on average, at least 40 hours per week for the two weeks preceding the date the employee took COVID-19 supplemental paid sick leave.  Otherwise, employees are entitled to their total number of hours they normally are scheduled to work for the employer over two weeks, and if the employee works a variable schedule, then they receive 14 times the average number of hours worked in the six months preceding the date the employee took COVID-19 supplemental paid sick leave.  The law also sets forth how employers are to calculate each hour of COVID-19 supplemental paid sick leave for exempt and non-exempt employees.

Limited Use of Other Leaves

The supplemental paid sick leave must be in addition to any paid sick leave available to the employee pursuant to the Healthy Workplaces, Healthy Families Act of 2014 as set forth in Labor Code section 246.  Employers may not require employees to use any other paid or unpaid leave, paid time off, or vacation time before the employee uses COVID-19 supplemental paid sick leave.  However, employers may require employees to first exhaust their supplemental paid sick leave prior to paying employees under the Cal-OSHA COVID-19 Emergency Temporary Standards.

Cap

Employers are not required to pay more than $511 per day and $5,110 in the aggregate to a covered employee for COVID-19 supplemental paid sick leave.  However, if federal legislation amended these limits as set forth in the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act (FFCRA), then the increased limits would apply to the California law.

Amount Must Be Set Forth In Writing To Employee

Employers must set forth the amount of COVID-19 supplemental paid sick leave available to an employee on the employee itemized wage statement or other writing provided on the designated pay date with the employee’s payment of wages.  For employees who work variable schedules, employers must perform an initial calculation of paid sick leave available and then indicate “(variable)” next to the calculation.  Then the employer must update the calculation when the employee requests covered paid leave or request records under Labor Code section 247.5.

5. Retroactive pay required to employees

If signed by the Governor, the law requirement to provide COVID-19 supplemental paid sick leave takes effect 10 days later, but the law shall apply retroactively to January 1, 2021.  Therefore, if an employee has taken leave since January 1, 2021 which was not paid by the employer, and is covered by one of the qualifying reasons for paid leave, upon the employee’s oral or written request by the employee, the employer is required provide the employee with a retroactive payment.  This payment must be made on or before the payday for the next full pay period after the request is made.  The employer must reflect this payment on the itemized wage statement or another writing provided to the employee on the designated pay date.

For additional updates on this new proposed law, as well as other California employment laws facing employers as they reopen their businesses, will be provided during my firm’s webinar on March 24, 2021 at 10 a.m. PT.  Registration for the webinar is here.

[Update: This article has been updated to reflect the new guidance from California’s Department of Fair Employment and Housing (“DFEH”) issued in March]

Many questions exist about the COVID-19 vaccine in terms of the workplace and employees.  Here are five common questions employers face in terms of mandating the vaccine and requirements that apply to employees who have been vaccinated:

1. Can employers make employees get the vaccine?

According to the Equal Employment Opportunity Commission (EEOC), employers can generally require employees to receive a COVID-19 vaccination. However, the EEOC encourages employers to take certain precautions in mandating vaccines to avoid violations of the Americans with Disabilities Act (ADA) and other disability laws. For example, while administering the vaccine itself is not considered a medical examination that would violate the ADA, certain medical-related questions can constitute impermissible “disability-related inquiries.” However, these limitations on asking disability-related questions do not apply when a third party administers the vaccination. Additionally, employers may offer the vaccination on a voluntary basis provided that the employee’s decision to fill out any screening disability-related questions is also voluntary.

California’s DFEH provided the following guidance that permits California employers to require employees to be vaccinated:

Under the FEHA, an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

2. What if, for religious or health reasons, they refuse to take it? What proof can employers ask for?

The biggest limits on a mandatory vaccine requirement are considering exemptions for individuals with sincerely held religious beliefs or health conditions that prevent them from receiving the vaccine. Sincerely held religious beliefs are covered under Title VII of the Civil Rights Act and the ADA governs medical conditions that make receiving the vaccine dangerous or inappropriate.

For individuals refuse to get vaccinated due to sincerely held religious beliefs, the employer must provide reasonable accommodations unless it would pose “undue hardship” to the employer. The EEOC states that “because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for accommodations is based on a sincerely held religious belief.” In other words, employers should generally not question employees about their religion. However, employers may question the nature or sincerity of the employee’s religion if they have an objective basis for doing so. In such a case, employers may be justified in asking for additional supporting information.

For employees who cannot get vaccinated due to a disability, employers must also take steps to provide reasonable accommodations. These accommodations cannot be unduly burdensome to the employer. Some reasonable accommodations for these employees include allowing them to work remotely or adjusting the employee’s duties to prevent contact with others. An employer may exclude the employee from the workplace if having the unvaccinated person on the premises would post a “direct threat” to the health and safety of other workers. However, even if such a threat does exist, employers should analyze the facts of each employee’s case closely and make individualized determinations.

The DFEH likewise explains that Under California law:

…the FEHA requires employers to reasonably accommodate employees with a known disability or sincerely-held religious belief or practice that prevents them from being vaccinated against COVID-19, as well as prohibits employers from retaliating against anyone for engaging in protected activity.

3. Can employees who received a vaccination no longer abide by social distancing protocols?

No.  As California’s COVID19.CA.GOV website explains:

Even with a vaccine, you may still be able to spread COVID-19. It is important for everyone to continue using all the tools available to us to help stop this pandemic, like:

Together, COVID-19 vaccination and taking steps to protect yourself and others will offer the best protection from getting and spreading COVID-19. We need to understand more about the protection that vaccines provide before we change recommendations.

Also, the CDC has also cautioned against individuals who have received the vaccine from attending social gatherings if they have symptoms:

Fully vaccinated people should not visit or attend a gathering if they have tested positive for COVID-19 in the prior 10 days or are experiencing COVID-19 symptoms, regardless of vaccination status of the other people at the gathering.

4. If an employee has received a COVID-19 vaccine, can they refuse to get employer mandated COVID-19 tests?

No, even after receiving the vaccine, COVID19.CA.GOV sets forth that employers may still mandate that the employee take regular COVID-19 tests: “If your job requires it, you still need to get tested regularly, even if you had the vaccine”

5. Can employers ask for proof that the employee received the vaccine?

According to the EEOC, employers may ask for proof of vaccination because such proof is not considered a disability-related inquiry. Since people who have received the vaccine are given a card, it would be reasonable to ask for proof via this card. However, employers should not ask intrusive follow-up questions such as the reasons why the employee is not getting vaccinated since these questions may be considered disability-related and accordingly trigger ADA protections. Employers should also request that employees provide them no more information than necessary as proof of vaccination in order to avoid violations of other disability laws.

According to the DFEH, employers may ask the employee for “proof” of the vaccination:

Yes. Because the reasons that any given employee or applicant is not vaccinated may or may not be related to disability or religious creed, simply asking employees or applicants for proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination. However, because such documentation could potentially include disability-related medical information, employers may wish to instruct their employees or applicants to omit any medical information from such documentation. Any record of employee or applicant vaccination must be maintained as a confidential medical record.

In this video, I breakdown New York Governor Andrew Cuomo’s apology statement from the perspective of a California employment attorney and cover the five lessons employers should learn from this incident:

1. Duty to investigate complaints.

California Government Code section 12940(j) provides that it is “unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”  The law also provides that employers are liable if they “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”  Gov. Code section 12940(k).

2. Investigations must be done properly and impartially.

The investigator needs to be an impartial third-party that is knowledgeable on conducting investigations.  More information on how employers can conduct proper investigations can be read here.

3. Harassment can take many forms – not just physical touching.

4. The focus is on the victim’s perspective, not whether the alleged harasser intended the conduct.

The U.S. Supreme court explained, “This standard requires an objectively hostile or abusive environment—one that a reasonable person would find hostile or abusive—as well as the victim’s subjective perception that the environment is abusive.”  Harris v. Forklift Systems, Inc.

5. Do not jump to any conclusions prior to finalizing the investigation.

As a reminder, California employers with five or more employees must provide two hours of sexual harassment prevention training to supervisors, and one hour of training to employees as of January 1, 2021.  This training must be renewed every two years.

Late last year, Cal/OSHA implemented Emergency Temporary Standards that imposed dramatic new testing, training, and recordkeeping requirements related to COVID-19 exposure in the workplace. Most controversial of these new requirements was a mandate that employers “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits” for employees excluded from the workplace under the ETS regulations, unless the employee was unable to work for other reasons (including hospitalization) or the employer could demonstrate that the COVID-19 exposure was not work related. Combined with requirements that even asymptomatic close contacts be excluded for at least 10 days (regardless of a negative test), this new ETS imposed significant pay obligations on employers just as various state and federal COVID-19 paid leave requirements were expiring at the end of 2020.

As noted previously, various business groups challenged portions of the ETS in state court in San Francisco, one of several such lawsuits. But after extensive briefing from the parties (and several interested non-parties), the judge last week issued an order denying a motion to preliminarily enjoin portions of the ETS:

Plaintiff have not shown a likelihood of prevailing on the merits of their claims.  Even if they could do so, the balance of interim harms and the public interest in curbing the spread of COVID-19 and protecting worker and community health way heavily in favor of the continued implementation and enforcement of the ETS Regulations.  With the single exception of restrictions on attendance at religious services, which present unique constitutional considerations, no federal or state court in the country has blocked emergency public health orders intended to curb the spread of COVID-19, and the illness, hospitalization, and deaths that follow in its wake. [Citations] This Court will not be the first.  Lives are at stake.

There is no indication as to whether the plaintiffs will appeal. The case does not end with this denial, but the ruling means the court will allow the ETS regulations to stand while the litigation proceeds. Therefore, employers should continue to follow the ETS regulations and track new updates from Cal/OSHA.

As February ends, there are many developments on the employment legal front.  Here are five prevalent employment issues for California and across the U.S.:

1. California Supreme Court holds employers may not round time entries for meal periods.

On February 25, 2021, the California Supreme Court held that employers may not engage in time rounding time punches for meal breaks under California law.  The case, Donohue v. AMN Services, Inc., the Court held that “meal period provisions are designed to prevent even minor infringements on meal period requirements, and rounding is incompatible with that objective.”  The Court distinguished time rounding policies in the context of meal breaks from time rounding policies for tracking an employee’s work time.  A California Court of Appeal held in See’s Candy Shops, Inc. v. Superior Court (2012) that employers may use rounding policies “to calculate regular and overtime wages if the rounding policy is neutral on its face and as applied.”  In Donohue, the Court explained that meal breaks are different: “In the meal period context, however, there is an asymmetry between the treatment of rounded-up minutes (i.e., time not work that is compensated with regular pay) and the treatment of rounded-down minutes (i.e., time worked that may trigger premium pay).”

The Court also raised concerns about time rounding policies given the ease of tracking employees’ time with technology, and the Court noted, “[a]s technology continues to evolve, the practical advantages of rounding policies may diminish further.”

The Court also held that time records showing late, short, or missed meal breaks “raise a rebuttable presumption of meal period violations, including at the summary judgment stage.”

2. Lawsuit challenging Cal/OSHA Emergency Temporary Standards (ETS) regulations is denied.

On February 25, 2021, the San Francisco Superior Court denied a group of employer’s application for preliminary injunction attempting to prevent Cal/OSHA’s Emergency Temporary Standards that were issued on November 30, 2020.  In denying the preliminary injunction, the court stated that “the balance of interim harms and the public interest in curbing the spread of COVID-19 and protecting worker and community health weigh heavily in favor of the continued implementation and enforcement of the ETS Regulations.”

California employers must still comply with the Cal/OSHA ETS regulations.  For more information about the ETS regulation, see our prior post here. 

3. Federal $15 minimum wage is not going to be part of President Biden’s COVID-19 relief bill.

On February 25, 2021, the Senate parliamentarian Elizabeth MacDonough ruled that minimum-wage legislation could not be passed through the budget-reconciliation process, and therefore would not be included in the $1.9 trillion relief package.  The Federal minimum wage, which is currently at $7.25 per hour, could still be increased through other paths.  Given the 50-50 Democrat-Republican split in the Senate, it appears that an increase in the Federal minimum wage will likely need to be a compromise.  Some proposed compromises include raising the minimum wage to $11 or $12 per hour, setting increases in minimum wage on a regional basis across the country, or limited the higher minimum wage to larger employers only.  Employers across the country will need to pay attention to see how this legislation develops. Our prior post on President Biden’s COVID-19 Rescue Plan can be read here.

4. California pay data reporting is due March 31, 2021.

As California employers are preparing to file their pay reporting data with the Department of Fair Employment and Housing (DFEH) by March 31, 2021 pursuant to SB 973 (click here for more information about the pay data reporting requirements), there are many questions arising about how to collect certain information.  For example, employers need to report the pay data based on seven race/ethnicity categories:

  • Hispanic/Latino
  • Non-Hispanic/Latino White
  • Non-Hispanic/Latino Black or African American
  • Non-Hispanic/Latino Native Hawaiian or Other Pacific Islander
  • Non-Hispanic/Latino Asian
  • Non-Hispanic/Latino American Indian or Alaskan Native
  • Non-Hispanic/Latino Two or More Races

However, how are employers to gather this information?  The DFEH published FAQs that explains: “Employee self-identification is the preferred method of identifying race/ethnicity information. If an employee declines to state their race/ethnicity, employers must still report the employee according to one of the seven race/ethnicity categories, using — in this order — current employment records, other reliable records or information, or observer perception.”  Employers should document the collection of this data in order to prove compliance with this guidance from the DFEH.

5. Labor Commissioner cites Los Angeles business for COVID-19 retaliation.

On February 17, 2021, the California Labor Commissioner cited a Los Angeles employer for $125,913 for “workplace retaliation and labor law violations, after the Labor Commissioner found that the employer illegally fired four workers for reporting unsafe working conditions during the COVID-19 pandemic.”  The citations include $45,193 in lost wages, $720 in interest due, $40,000 in Section 98.6 retaliation penalties, and $40,000 in Section 1102.5 retaliation penalties.  As business begin to reopen in California, employers must be aware of potential COVID-19 claims and ensure all employment decisions are well documented.