On March 27, 2020, the City Council passed an ordinance mandating employers with 500 or more employees nationally offer Supplemental Paid Sick Leave for various COVID-19 related reasons described below.  The ordinance is awaiting Mayor Eric Garcetti’s review and anticipated approval.

Under the ordinance, covered employers must offer 80 hours of Supplemental Paid Sick Leave to employees who perform work within the geographic boundaries of the City of Los Angeles. However, the ordinance caps the total amount to be paid to no more than $511 per day and no more than $5,110 in the aggregate.  An employer may not condition the Supplemental Paid Sick Leave on receipt of a doctor’s note from the employee.

First responders or healthcare providers as defined by the California Government Code are exempted from the ordinance.  Furthermore, provisions of the ordinance may be expressly waived by a collective bargaining agreement.

Covered reasons for the Supplemental Paid Sick Leave include:

  • Time off because a “public health official or health provider requires or recommends the Employee isolate or self-quarantine to prevent the spread of COVID-19;”
  • The employee takes time off because they are at least 65 years old or has a health condition that puts them at risk;
  • The employee needs to care for a family member who is not sick, but who public health officials or healthcare providers have required or recommended self-quarantine; or
  • The employee needs to provide care to a family member whose senior care provider, school, or childcare provider is closed.

An employer’s obligation to provide the 80 hours of Supplemental Paid Sick Leave shall be reduced for every hour an employer allowed an employee to take leave for any of the covered reasons listed above on or after March 4, 2020.

The ordinance expires on December 31, 2020, unless the City Council takes action to extend the ordinance.

Jackson Lewis will continue to monitor this ordinance and other emergency regulations pertaining to COVID-19. Jackson Lewis’ Coronavirus Task Force is actively monitoring the developing situation surrounding the complexities of COVID-19.

Last week, San Francisco announced expanded eligibility for paid sick leave under its Paid Sick Leave Ordinance and announced the Workers and Families First Program, which provides city-funded additional sick leave pay for employees working in San Francisco.

Expanded Use of Paid Sick Leave

Since late 2006, San Francisco has had its own Paid Sick Leave Ordinance. The ordinance requires employers to provide paid sick leave (“PSL”) to all employees (including temporary and part-time employees) who perform work in San Francisco.  San Francisco’s PSL can be used by an employee when they or a family member are ill, injured, or for the purpose of receiving medical care (including preventive care), treatment, diagnosis, or other medical reason.

In response to the COVID-19 pandemic, San Francisco expanded its Paid Sick Leave Ordinance to allow covered employees to use accrued sick leave in the following situations:

  • The employee takes time off work because public health officials or healthcare providers require or recommend an employee isolate or quarantine to prevent the spread of disease;
  • The employee is not working because the employee falls within the definition of a “vulnerable population” under the San Francisco Department of Public Health’s (DPH) March 6, 2020 guidelines or any subsequent updates.  As of March 6, 2020, a “vulnerable population” is a person who is 60 years old or older or a person with a health condition such as heart disease, lung disease, diabetes, kidney disease, or weakened immune system;
  • The employee takes time off work because the employee’s business or a work location temporarily ceases operations in response to a public health or other public official’s recommendation – subject to the “Eligibility for Paid Sick Leave” guidelines above;
  • The employee takes time off work because the employee needs to provide care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolate or quarantine; or
  • The employee takes time off work because the employee needs to provide care for a family member whose school, childcare provider, senior care provider, or work temporarily ceases operations in response to a public health or other public official’s recommendation.

In addition to expanding the uses of accrued Sick Leave, on March 24, 2020, San Francisco’s Office of Labor Standards Enforcement (OLSE) issued the following guidance regarding the use of San Francisco paid sick leave during the current local health emergency:

  • San Francisco has temporarily suspended Employers from requiring a doctor’s note or other documentation from Employees who use the Paid Sick Leave for COVID-19 reasons for the duration of the COVID-19 Local Health Emergency.
  • Only present employees are eligible for San Francisco’s Paid Sick Leave. Workers that have been laid off by their employer are no longer eligible for paid sick leave.
  • Employees who have their hours reduced or eliminated are not entitled to use accrued paid sick leave to account for such reductions or eliminations.  Employees who remain scheduled to work may continue to use their accrued paid sick leave for any qualifying reason for any portion of their scheduled hours they are unable to work.
  • Employers are not required to pay employees for accrued unused paid sick leave upon the employee’s separation from employment.  However, if an employer is using a Paid Time Off or vacation policy to comply with the Ordinance, California law requires the payout of PTO or vacation upon separation of an employee.
  • If there is a separation from employment, and an employee is later rehired by the employer within one year, previously accrued and unused paid sick leave must be reinstated, and the employee is entitled to use the previously accrued and unused paid sick leave and to accrue additional paid sick leave upon rehiring.

Workers and Families First Program

In addition to amending its Paid Sick Leave Law, San Francisco announced the Workers and Families First Program (“Program”).  This Program will provide PSL to private-sector employees who have been impacted by the COVID-19 pandemic.  The Program includes $10 million in public funding to provide businesses and nonprofits with an additional five days of sick leave pay to employees beyond their existing employer-provided policies.  All San Francisco businesses will be eligible, with up to 20% of funds reserved for small businesses with 50 or fewer employees. The City contributes up to one week (40 hours) at $15.59 per hour (minimum wage) per employee. The employer will pay the difference between the minimum wage and an employee’s full hourly wage.

This Program will be available only if the employee has exhausted their currently available sick leave; has exhausted or is not eligible for federal or state supplemental sick leave, and the employer agrees to extend sick leave beyond current benefits.  Employers must apply with the City to participate in this Program.

The Office of Economic and Workforce Development and the Human Services Agency will administer this Program.

The City also announced a policy allowing public workers an advance of their paid time off in the event that they cannot work due to COVID-19 and related public health recommendations as well as promising $2.5 million to support working artists and arts organizations impacted by COVID-19.

Jackson Lewis’ Coronavirus Task Force is actively monitoring the developing situation surrounding the complexities of COVID-19. If you need assistance determining whether your business may remain open or require other assistance navigating the complexities of COVID-19 and the workplace, please contact a Jackson Lewis attorney to discuss.

As California cases of COVID-19 began to rise in early March, several California administrative agencies released information on COVID-19 employment issues, such as administration of paid sick leave, disability benefits, and unemployment insurance. Yet, the Department of Fair Employment and Housing (DFEH)—the agency charged with enforcement of California’s Fair Employment and Housing Act (FEHA), which, among other things, prohibits discrimination, harassment, and retaliation in the workplace—remained silent.

Earlier this week, the DFEH released its own guidance in response to the COVID-19 pandemic. The DFEH’s guidance, styled in the form of Frequently Asked Questions, answers many questions that have arisen as COVID-19 workplace concerns have become ubiquitous, including whether employers may take employees’ temperatures, how much information an employer may reveal about employees who come in contact with the virus, how much employers may ask about an employee’s absence from work, and whether employers may require employees to wear personal protective equipment. The DFEH’s guidance confirms that an employee may use leave under the California Family Rights Act (CFRA) if the employee is ill with COVID-19 or is caring for a family member with COVID-19. The guidance also discusses whether employers should require medical documentation for leaves and accommodations for COVID-19 related disabilities given practical limitations on employees’ abilities to obtain medical documentation. Most of the DFEH’s guidance mirrors guidance previously issued by federal agencies.

The U.S. Equal Employment Opportunity Commission (EEOC) previously released its own guidance for COVID-19 response in the workplace, including whether employers could perform employee temperature checks and how much information an employer could request from employees calling in sick. However, because the EEOC only administers federal law, before the DFEH issued its guidance, it was unclear whether the same direction would apply under California’s stricter FEHA.

Jackson Lewis’ Coronavirus Task Force is actively monitoring the developing situation surrounding the complexities of COVID-19. If you need assistance navigating the complexities of COVID-19 and the workplace, please contact a Jackson Lewis attorney to discuss.

On March 19, California Governor Newson issued a historic Executive Order N-33-20 (the “Order”)  impacting approximately 40 million California residents.  The Order directs all individuals living in California to stay at home “except as needed to maintain continuity of operations of the federal critical infrastructure sectors” or to obtain essential needs, such as food, healthcare, or prescriptions.

To determine which businesses can continue to operate, the Order referenced the “CISA Critical Infrastructure Sectors,” a list of 16 critical sectors.  Due to numerous ambiguities, however, Companies had to quickly determine whether to cease operations in light of the order.

In the evening of March 20, the Governor’s office issued further guidance identifying a list of “Essential Critical Infrastructure Workers.” This new guidance provides more details specific to California regarding businesses that may remain open.  The sectors identified in the new guidance are as follows:

  • Healthcare/Public Health
  • Emergency Services
  • Food and Agriculture
  • Energy
  • Water and Wastewater
  • Transportation and Logistics
  • Communications and Information Technology
  • Other Community-Based Government Operations and “Essential Functions”
  • Critical Manufacturing
  • Hazardous Materials
  • Financial Services
  • Chemical
  • Defense Industrial Base

These sectors mostly align with the CISA memorandum and provide separate sector profiles, explaining which essential workers fall within each sector.  Notably, this guidance also identifies certain essential workforces unique to California, including cannabis retailers.

California has also published a Frequently Asked Questions (“FAQ”) page, which implies the State Public Health Officer’s list defines the scope of employees who can still travel to work. The FAQs state that if “your business or organization is in the list of exempt sectors, it may still operate,” linking to the Public Health Officer’s list of Essential Critical Infrastructure Workers.

California’s state order is not the only order that employers must consider when determining if their business can remain open. Employers should also review and consider local county and city-specific orders. For more information regarding recent closures and local orders, the State of California maintains a regularly updated page here.

Jackson Lewis’ Coronavirus Task Force is actively monitoring the developing situation surrounding the complexities of COVID-19. If you need assistance determining whether your business may remain open or require other assistance navigating the complexities of COVID-19 and the workplace, please contact a Jackson Lewis attorney to discuss.

It is well known that California’s workplace health and safety regulations direct workers to develop and implement an Injury and Illness Prevention Program (“IIPP”) to protect employees from workplace hazards. Some employers also have an obligation under the California Department of Industrial Relations Division of Occupational Safety & Health’s (“Cal OSHA”) Aerosol Transmissible Diseases (“ATD”) standard (Title 8 California Code of. Regulations (CCR) §5199) to take additional precautions to protect workers from airborne infectious diseases, such as coronavirus (“COVID-19”). To further address risks of exposure to COVID-19 from working with children, Cal OSHA recently issued guidance to childcare industry employers and program administrators on ‘COVID-19 Infection Prevention in Childcare Programs.’

Please find the full article on the Jackson Lewis OSHA Law Blog here.

 

Effective March 19, 2020, California Governor Gavin Newsom issued Executive Order N-33-20 (“Order”), directing all individuals living in the State of California to stay home or at their place of residence, except as to maintain continuity of operations of the federal critical infrastructures.  This Order shall stay in effect until further notice.

The directive is consistent with the March 19, 2020, Memorandum on Identification of Essential Critical Infrastructure Workers During the COVID-19 Response.  The purpose of the Order is to slow the spread of COVID-19 to preserve the public health and safety, and to ensure the healthcare delivery system is capable of serving all and prioritizing those at the highest risk and vulnerability.

The Order recognizes that “the supply chain must continue, and Californians must have access to such necessities as food, prescriptions, and health care.  When people need to leave their homes or places of residences, whether to obtain or perform the functions above or to otherwise facilitate authorized necessary functions, they should at all times practice social distancing.”

Jackson Lewis has a dedicated team tracking and responding to the developing issues facing employers in this difficult time. If you need guidance in handling the complicated issues pertaining to COVID-19, contact a Jackson Lewis attorney to discuss.

With an alarming number of American workers lacking adequate retirement savings, California and a handful of other states began implementing state-sponsored retirement savings programs.  The CalSavers Retirement Savings Program (CalSavers) was first launched as a pilot program in 2018 and then expanded to all eligible employers in the state in July 2019 in order to provide employees access to a retirement savings program without the administrative complexity for employers. CalSavers requires employers who do not offer employer-sponsored retirement plans to its employees, such as a 401(k) plan, to automatically enroll their employees into the CalSavers plan and to remit payroll deductions to the CalSavers trust for each employee who does not affirmatively opt out of participation in the plan.

In 2018, Howard Jarvis Taxpayers Association (HJTA), a non-profit lobbying and policy group, challenged the legality of CalSavers and claimed that the program was expressly preempted by the Employee Retirement Income Security Act of 1974 (ERISA). HJTA argued that, without preemption, such state-run employee funds will have none of the protections of ERISA.

On March 10, 2020, a federal judge ruled that CalSavers does not create an “employee benefit plan” under Section 3(3) of ERISA and is, therefore, not preempted. The reasoning behind this determination was that CalSavers is not established or maintained by an “employer” and does not “relate to” any ERISA plan.

“Actual employers have no discretion in the administration of CalSavers and do not make any promises to employees; employers simply remit payroll deducted payments to the Program and otherwise have no discretion regarding the funds,” Judge Morrison C. England stated.  Furthermore, the court refused to find that the California Secure Choice Retirement Savings Investment Board, the state agency board that administers CalSavers, and the California Secure Choice Retirement Savings Trust, the trust that held the contributions, are “employers” because neither the Board nor the Trust acts directly or indirectly in the interest of an employer.

Lastly, the federal district court held that CalSavers does not “relate to” an ERISA plan because it does not interfere with nor apply additional requirements on any employer-sponsored or ERISA plans.  It also does not mandate that an employer establish an employee benefit plan. Rather, CalSavers applies only when an employer does not sponsor its own retirement plan.

Judge Morrison previously dismissed the lawsuit in 2019 without prejudice, which allowed HJTA to refile. Last fall, the federal Department of Justice filed a “Statement of Interest” that supported HJTA’s stance that CalSavers was preempted by ERISA. Despite this support from the Department of Justice, the federal court disagreed.

It is not clear at this time if HJTA will appeal this decision.

Jackson Lewis will continue to monitor this matter. If you have questions about CalSavers or other ERISA issues, contact a Jackson Lewis attorney to discuss.

As many counties in California issue executive orders and proclamations to either close certain businesses or shelter-in-place, California employers are faced with the difficult decision whether to lay off employees while they are closed. In the event of an immediate business closure, California employers were concerned with how to comply with the notice requirements for the California Worker Adjustment and Retraining Notification Act (Cal/WARN).

Under Cal/WARN a covered establishment is defined as an industrial or commercial facility that employs 75 or more employees (including part-time employees) during the preceding 12 months before the mass layoff. The Cal/WARN defines a mass layoff as one where 50 or more employees are laid off at a covered establishment, during any 30-day period. Typically, a mass layoff would require the covered employer to provide 60 days’ notice to employees and certain administrative entities.

On March 17, California’s governor provided guidance and issued an executive order clarifying how mass layoffs due to COVID-19 orders may be handled. While Cal/WARN still applies, the notice requirement is relaxed to be given “as soon as practicable.” The notices must include a basis for reducing the notification period, including reference to being due to “business circumstances that were not reasonably foreseeable as of the time of the notice would have been required.” The notices must also direct employees that they may be eligible for unemployment insurance and provide a link to http://www.labor.ca.gov/coronavirus2019

The governor’s order also charges the Labor Workforce Development Agency to issue further guidance regarding Cal/WARN by March 23rd.

If you need assistance with handling a mass layoff or have questions about the applicability of Cal/WARN to our business, contact a Jackson Lewis attorney to discuss.

On March 16, 2019, six Bay Area counties issued Shelter-in-Place Orders (“the Orders”) limiting the operation and activities of residents and businesses in Alameda, Contra Costa, Marin, San Francisco, Santa Clara, and San Mateo Counties.  The purpose of the Orders is to slow the spread of COVID-19.

When Do the Orders Take Effect?

The Orders take effect at 12:01 am on March 17, 2020, and end at 11:59 pm on April 7, 2020, or until extended, rescinded, amended or superseded.

What do the Orders Require?

  • All individuals living in the six counties are to shelter at their place of residence.
  • All businesses with a facility in any of the six counties, except “Essential Businesses” and those considered “Essential Infrastructure,” are required to cease all operations at their facilities. Non-Essential Businesses may continue operations only using employees or contractors who work remotely. On-site employees at Non-Essential Businesses may only perform “Minimum Basic Operations” tasks.
  • Generally, residents may only leave their homes to engage in specified health and safety activities, to work for or obtain services at a healthcare operation, to operate an Essential Business or essential governmental function, to provide Minimum Basic Operations services, to travel to or from educational institutions to receive materials for distance learning, or to receive meals or any other related services. The Orders preclude most other travel including travel on foot, bicycle, scooter, motorcycle, automobile or public transit.
  • The Orders preclude all public and private gatherings occurring outside a household or living unit.
  • Individuals are required to practice social distancing whenever outside of their residence.

What Businesses are Essential Businesses?

The Orders provide exemptions for a myriad of employers operating “Essential Businesses.”  Essential businesses include: healthcare operations and businesses that provide essential infrastructure; stores that sell groceries and products necessary to maintain the safety, sanitation, and essential operation of residences; businesses that cultivate food, including farming, livestock and fishing; businesses that provide food, shelter, and social services; newspapers, television, radio, and other media services; gas stations, auto-supply, auto-repair, and related facilities; banks and related financial institutions; service providers who provide services necessary for maintaining the safety, sanitation, and essential operation of residences, such as plumbers, electricians and exterminators; businesses providing mailing and shipping services, including post office boxes; educational institutions; hardware stores; laundromats, drycleaners, and laundry service providers; restaurants and other facilities that prepare and serve food; businesses that supply products needed for people to work from home; businesses that supply other essential businesses with the support or supplies necessary to operate; businesses that ship or deliver groceries, food, goods or services directly to residences; airlines, taxis, and other private transportation providers providing transportation services necessary for Essential Activities; businesses that provide home-based or residential care for seniors, adults, or children; businesses that provide professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities; and childcare facilities providing services that enable employees exempted from the Orders to work as permitted.

For purposes of the Orders fitness and exercise gyms are not healthcare operations and will be required to close. And while restaurants may remain open, they are required to limit service to delivery or carryout only.

What are “Minimum Basic Operations”?

Non-Essential Businesses may only continue “Minimum Basic Operations” at their facilities.  Minimum Basic Operations are necessary activities related to security, maintaining the value of inventory, processing payroll and benefits, and ensuring that employees may work remotely.   Any employees on-site for Minimum Basic Operations activities must comply with Social Distancing requirements such as maintaining at least six-foot distance between other individuals.

What is Essential Infrastructure?

Essential infrastructure includes public works construction, construction of housing, airport operations, water, sewer, gas, electrical, oil refining, roads and highways, public transportation, solid waste collection and removal, internet, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services).

Jackson Lewis has a dedicated team tracking and responding to the developing issues facing employers in this difficult time. If you need guidance in handling the complicated issues pertaining to COVID-19, contact a Jackson Lewis attorney to discuss.

The California Supreme Court has weighed in on who is an aggrieved employee under the Private Attorneys General Act (PAGA) in Kim v. Reins International California, Inc. The issue before the court was, does an employee bringing an action under PAGA lose standing to pursue representative claims as an “aggrieved employee” by settling and dismissing his or her individual claims against the employer?

Under the PAGA, an “aggrieved employee” may bring a representative action on behalf of him or herself and other “aggrieved employees” for any violation of the California Labor Code. Cal. Labor Code §§ 2698, et seq.  Since the law was first enacted in 2004, many California employers have been hit with PAGA actions, in which employees can seek substantial civil penalties previously only recoverable by the State of California. PAGA cases have become increasingly favored by plaintiffs’ attorneys for several reasons, including the fact that PAGA-claims cannot be compelled into arbitration.

In oral arguments in January, counsel for the employee argued that the appellate ruling caused the plaintiff-employee and the State of California (which deputized him to prosecute PAGA claims) to be in conflict. He argued a plaintiff-employee could potentially face choosing between his own settlement or proceeding with protecting the representative action. In the underlying case, Plaintiff Kim was served with an offer to compromise to resolve his individual claims under Code of Civil Procedure section 998. If Kim had not accepted the offer to compromise and failed to obtain a larger judgment on his individual claims under Section 998, Kim may not have had a right to recover court costs as the prevailing party and may have had to pay Reins International’s costs.

The Court agreed with Kim. The Court stated, “[a] PAGA claim is legally and conceptually different from an employee’s own suit for damages and statutory penalties. An employee suing under PAGA “does so as the proxy or agent of the state’s labor law enforcement agencies. … Moreover, the civil penalties a PAGA plaintiff may recover on the state’s behalf are distinct from the statutory damages or penalties that may be available to employees suing for individual violations.”

The Court clarified that not every private citizen can serve as the state’s representative under PAGA, only an aggrieved employee has PAGA standing. The opinion points back to the PAGA definition of aggrieved employee as “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” Though as seen in Kim, even an employee who has settled their claims with their employer, can still serve as an aggrieved employee.  As the Court explained, “Employees who were subjected to at least one unlawful practice have standing to serve as PAGA representatives even if they did not personally experience each and every alleged violation.”

Jackson Lewis assists employers with litigation pertaining to Private Attorney General Claims and related matters. If you would have a PAGA claim or have questions about PAGA, contact a Jackson Lewis attorney to discuss.