Whether the Establishment and Free Exercise Clauses prevent civil courts from adjudicating employment discrimination claims brought by employees against their religious employer, where the employee carried out important religious functions, is the question presented in two consolidated cases before the U.S. Supreme Court: Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267, and St. James School v. Biel, No. 19-348.

Please find the full article on the Jackson Lewis Publications Page.

The City of Los Angeles has enacted two Ordinances requiring fair employment practices in response to job and economic insecurity due to COVID-19 related shelter in place orders.  The Ordinances, which go into effect on June 14, 2020, apply to four categories of businesses and employers which the City found have been especially impacted by the COVID-19 pandemic:

  1. Airport: defined by the Ordinances as a business or employer that provides any service at the City of Los Angeles Department of Airports and each airport it operates in the City, or provides any service to any business or employer servicing the Airport, and is required to comply with the Los Angeles Living Wage Ordinance. Airlines and businesses or employers that are parties to an agreement with the Airport that contains a worker retention or rehire agreement are not covered by the Ordinances.
  1. Commercial Property: defined by the Ordinances as an owner, operator, manager, or lessee (including a contractor, subcontractor, or sublessee) of a non-residential property in the City that employs 25 or more janitorial, maintenance, or security service workers. Only the janitorial, maintenance, and security service workers who perform work for a Commercial Property business or employer are covered by the Ordinances.
  1. Event Center: defined by the Ordinances an owner, operator, or manager of a publicly or privately-owned structure in the City of more than 50,000 square feet or with a seating capacity of 1,000 seats or more that is used for public performances, sporting events, business meetings, or similar events. An “Event Center Business” includes, but is not limited to, concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers.
  1. Hotel: defined by the Ordinances as an owner, operator or manager of a residential building in the City designated or used for public lodging or other related service for the public and either contains 50 or more guestrooms or has earned gross receipts in 2019 exceeding $5 million. This category includes the owner, operator, manager, or lessee of any restaurant physically located on hotel premises.

Under the Worker Retention Ordinance, when a covered business experiences a Change in Control as defined by the Ordinance, covered employees are given preference in hiring by the successor business employer for a period of 6 months and must be retained for at least 90 days, unless there is cause for termination (which the Ordinance does not define).

The Right of Recall Ordinance requires a covered employer to offer positions that become available on or after the June 14, 2020 effective date to qualified employees who were laid off on or after March 4, 2020. A laid-off employee is deemed qualified and must be offered a position – in the order of priority below – if the employee:

  1. Held the same or similar position at the same location when the employee was laid off; or
  1. Is or can be qualified for the position with the same training that would be provided to a new worker hired into the position.

If more than one laid-off employee is entitled to preference for a position, the employer must offer the position to the laid-off employee with the greatest length of service in the position and then to the laid-off employee with the greatest length of service with the employer at the employment site.

Under both Ordinances, a collective bargaining agreement in place as of the June 14, 2020 effective date that contains a worker retention provision, or a right of recall provision will supersede.

Other than in connection with a collective bargaining agreement, no waiver of the right of retention or the right of recall will be enforceable.

Notably, both Ordinances provide for a private right of action in state courts for any violations of the Ordinances, following notice and a 15-day cure period.  Available remedies include hiring and reinstatement rights, lost income and benefits, reasonable attorneys’ fees and costs, and under the Right of Recall Ordinance, punitive damages.

The full text of the Worker Retention Ordinance can be found here and the Right of Recall Ordinance here.

Jackson Lewis’ Coronavirus Task Force will continue to monitor these ordinances and other emergency regulations pertaining to COVID-19. Please contact a team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

California Governor Gavin Newsom has announced a plan to allow the limited reopening of some businesses beyond those in the category of essential critical infrastructure. This limited reopening is part of the “Resilience Roadmap” for California, the multi-phase plan to modify the statewide stay-at-home Order, originally issued on March 19, 2020, in response to the COVID-19 pandemic.

On May 4, 2020, the Governor issued an executive order directing Californians to continue to obey state public health directives. It also indicated the state was moving toward Stage Two, which would allow the reopening of “lower-risk businesses and spaces.”

Please find the full article on the Jackson Lewis Publications Page.

Last week, the Los Angeles Board of Supervisors enacted an urgency ordinance to require employers with 500 or more employees nationally to provide supplemental paid sick leave to covered employees for COVID-19 related reasons. The County’s ordinance applies only to businesses in unincorporated areas of the County and to employees who perform any work within the County. Businesses can verify on the County’s website whether they are located in an unincorporated area.

The ordinance, which went into effect immediately due to an urgency clause, requires covered employers to provide up to 80 hours of additional paid sick leave to full-time employees, and part-time employees to receive an amount no greater than the employee’s average two-week pay over the period of January 1, 2020, through April 28, 2020.

Under the newly enacted ordinance, employees may take supplemental leave for the following reasons:

  1. A public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
  2. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  3. The employee needs to care for a family member who is subject to a federal, state, or local quarantine or isolation order related to COV1D-19 or has been advised by a health care provider to self-quarantine related to COVID-19; or
  4. The employee takes time off work because the employee needs to provide care for a family member whose senior care provider or whose school or childcare provider ceases operations in response to public health or other public official’s recommendation.

The ordinance specifies the employee must be unable to work or telework and must make a written (which includes but is not limited to an electronic mail or text) request to the employer.

The only offset indicated in the ordinance is for paid time off provided to employees for the reasons outlined in the ordinance, outside of the employer’s regular leave policies.

The ordinance does not apply to food sector workers covered by the statewide Supplemental Paid Sick Leave for Food Sector Workers. Also exempted from the ordinance are emergency responders and health care providers.  This is consistent with other recent local supplemental paid sick leave ordinances passed in California.

As of the date of this article, the County has not issued any guidance on the new ordinance or recommended postings or notices.

Jackson Lewis will continue to monitor these local ordinances 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.

Before the COVID-19 crisis, there were limited paid leave entitlements in California for employees requiring time off to deal with childcare and school closures. California Labor Code 230.8 required that employers of 25 or more employees working at the same location were required to provide employees with up to 40 hours of unpaid leave within a calendar year to handle child-related activities, including to address a childcare provider or school emergency. As schools and childcare facilities began closing due to COVID-19, the California Labor Commissioner released a Frequently Asked Question page clarifying that employees may apply their California Paid Sick Leave to a covered leave under California Labor Code section 230.8. Also, pre-COVID-19, the City of San Diego was unique in California in that it included care for a child whose school or childcare provider is closed due to a public health emergency as a covered reason for its local sick leave. However, in mid-March, the landscape of leave entitlements available to employees for COVID-19 related school and childcare closures began to radically expand. Several cities in California responded to the COVID-19 pandemic with an expansion of their local paid sick leave ordinances to cover leave necessitated by the closure of a school or childcare due to a COVID-19 public health emergency.

Please find the full article on the Jackson Lewis Disability, Leave & Health Management Blog.

The Ninth Circuit recognized that plaintiff’s argument was novel but was thwarted by the statute itself.  Plaintiff below, argued on behalf of a class, that the company violated the Fair Credit Reporting Act (FCRA) by presenting the FCRA disclosure at the same time the company presented other separate documents.  The District Court granted summary judgment and the Ninth Circuit affirmed. Luna v. Hansen and Adkins Auto Transport, Inc., No. 18-55804 (9th Cir. Apr. 24, 2020).

Please find the full article on the Jackson Lewis Employment and Collective Action Update.

As shelter in place orders were rolled out in California, many businesses transitioned their workforce to remote work for the first time. Employers had to determine how to track hours worked or what qualified as a business expense. However, other unique questions arise with a remote workforce, such as how to handle employees using marijuana while working from home.

Over a decade ago, when California passed the Compassionate Use Act, an employee questioned an employer’s right to prohibit marijuana use. The California Supreme Court in Ross v. Ragingwire held the employer need not accommodate medicinal marijuana use, irrespective of the Compassionate Use Act of 1996. Ross reasoned that since the California Fair Employment and Housing Act (FEHA) does not require employers to accommodate illegal drug use, the employer could lawfully deny employment to individuals using medical marijuana, which remains illegal under federal law.

More recently, in 2016 California legalized marijuana for recreational use, which further complicated employee marijuana use at work. Despite the change in marijuana’s legal status, the law reiterated that an employer could have a policy against the use of drugs while working or at the workplace.

While the law permits employers to prohibit drug use at work, now a large portion of workers are working remotely, Unfortunately, the lines for employees may be blurred since they are in their own homes (and many people seem to need a little extra help getting through this pandemic).

Employers should remind employees that during working hours, the expectation is that employees will comply with all policies of the company, including drug and alcohol policies. If the company does not have a drug and alcohol policy, it may want to include information prohibiting the use of drugs and alcohol while performing work in a remote work agreement or work from home policy.

If a manager or supervisor suspects that an employee is using marijuana or other drugs while performing work for the company, the supervisor should be instructed to reiterate the company’s policies.

The more difficult aspect of a remote workplace is handling an employee who is clearly under the influence while working, such as appearing intoxicated at a video conference. In California, an employer can only request an employee undergo a drug test under limited circumstances, including if there is reasonable suspicion that the employee is under the influence. While there may be sufficient evidence to request a drug test, due to concerns surrounding COVID-19 including overwhelmed medical providers, an employer will need to more carefully consider whether to insist an employee submit to a drug test at this time. Similarly, as some employers are actually hiring new employees during COVID-19, they too may wish to consider whether to postpone typical post-offer, pre-hire drug tests until the current health crisis has calmed down. Of course, drug tests are still necessary for employees in safety-sensitive positions, but they typically are not working remotely.

If an employee voluntarily requests leave for drug rehabilitation, assuming the employer’s workforce is over 25 employees, the employer should grant the leave pursuant to California Labor Code Section 1025, unless the leave would result in an undue hardship. Other leaves may also apply, so employers should consult with their Jackson Lewis attorney. However, of note, all the new COVID-19 California Paid Sick Leaves are limited to either actual COVID-19 diagnosis or exposure, caring for family, or childcare issues only. As such there will be no need to grant paid sick leave to an employee who claims pandemic stress-induced drug use.

Employers should also be cautious that they are not overstepping into trying to control an employee’s lawful off-duty activities. This may include, for instance, seeing social media posts from employees using marijuana at home. Unless it’s clear from the post that the marijuana usage occurred during working hours, employers should refrain from taking any action.

If you need assistance preparing a substance abuse policy, please let us know. Jackson Lewis is also here to assist you with all issues pertaining to COVID-19. To subscribe to our daily COVID-19 briefings, click here.

Soon after San Jose passed its supplemental paid sick leave ordinance to respond to the COVID-19 crisis, it issued further guidance regarding the leave. The Director of the Office of Equality Assurance, the office charged with enforcement of the emergency ordinance, has also issued an opinion letter to provide additional information.

The opinion letter addresses the question of whether an employer that already provides the amount of sick leave hours required by the ordinance, must also provide additional leave for an employee who has exhausted some or all of that leave on the ordinance effective date. The opinion letter states, “[e]mployers covered by the ordinance are required to provide, on the ordinance effective date, at least the number of paid sick leave hours required by Section 9 [of the ordinance], regardless of paid sick leave accrued or used by the employee prior to the effective date.”

Essentially, the employer must provide the amount of sick leave hours needed to bring the employee up to the total hours required by Section 9 of the ordinance (80 hours for full-time employees) by April 7, 2020. An employer that provides some combination of paid personal leave less than the paid sick time required by the ordinance must provide the differential amount to the extent of such deficiency.

For example, assume an employer provides a full-time employee with eighty (80) hours of paid sick leave on January 1, 2020, and the employee had used twenty-four (24) hours of paid sick leave by the ordinance effective date. To comply with the ordinance, the employer must provide the employee with twenty-four (24) hours of additional paid sick leave on the ordinance effective date. The additional twenty-four (24) hours is subject to the limitation that it can be used only for the COVID-19 related reasons stated in the ordinance.

Employers subject to the ordinance are advised to provide notice to employees of their rights under the ordinance by posting or providing a copy of the notice issued by the city.

The COVID-19 Paid Sick Leave webpage indicates that the Office of Equality Assurance will continue to issue opinion letters in response to common questions regarding the ordinance.

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

Late April 17th, Mayor Breed signed the supplemental paid sick leave ordinance that earlier in the week, the Board of Supervisors had amended and passed. This was the same day that Mayor Breed announced an order requiring all individuals in public to wear face coverings.

The ordinance, like those passed by the cities of Los Angeles and San Jose, covers employers with 500 or more employees that are not otherwise subject to the federal Families First Coronavirus Response Act (FFCRA).

The enacted ordinance applies to all full-time or part-time employees working within the City, though a prior version of the ordinance required employees to have worked 56 hours or more. Full-time employees are provided 80 hours of emergency leave, while part-time employees receive less, based upon an average of hours worked over a two-week period.

An employee will be eligible for leave if:

  1. The employee is subject to an individual or general federal, state, or local quarantine or isolation order related to COVID-19;
  2. The employee is advised by a healthcare provider to self-quarantine;
  3. The employee is experiencing symptoms associated with COVID-19 and seeking medical diagnosis;
  4. The employee is caring for a family member subject to a quarantine or isolation order;
  5. The employee is caring for a family member because the family member’s school or place of care has been closed to the public health emergency caused by COVID-19.
  6. The employee is within a “vulnerable” population as defined by the Ordinance.

The Office of Labor Standards Enforcement (OLSE) has already released the approved notice for employers to provide to employees to notify them of their rights under the ordinance. Employers must provide this notice as soon as possible in order to comply with the requirements of the ordinance.

The OLSE has also published guidance to assist with complying with the new ordinance.

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

San Francisco remains at the forefront of COVID-19 related relief to those employees who work within the City and County limits.  Recently, the San Francisco Board of Supervisors has continued this effort and passed the Public Health Emergency Leave Ordinance (PHELO).  PHELO is an emergency ordinance set to temporarily require private employers with 500 or more employees to provide public health emergency leave during the public health emergency related to COVID-19.

PHELO was passed to address the emergency paid leave coverage gap created by the Families First Coronavirus Response Act (FFCRA) by extending paid leave to employees within the City who are not covered by the FFCRA.

The Board of Supervisors amended PHELO on April 14, 2020, before it was finalized by the mayor’s office.   Under the amended version, most workers who have performed work within San Francisco are covered.  A San Francisco worker who was considered a full-time employee as of February 25, 2020, will  be provided 80 hours of Paid Sick Leave and an employee who was a part-time as of February 25, 2020, will be provided the number of hours “equal to the average number of hours over a two-week period that the Employee was scheduled over the previous six months ending on February 25, 2020.”

The Board also expanded leave to those individuals classified as a member of a “vulnerable population” per Order No. C19-05, or any order issued by Bay Area jurisdictions recommending or requiring additional restrictions for vulnerable or high-risk populations.  Further, the amendment clarifies that this Emergency Leave is 80 hours of additional leave beyond what an employer’s policies provide under either vacation or sick leave.   However, the amendment provides an offset if, on or after February 25, 2020, an employer provided paid time off for COVID-19 outside of their normal leave policies.  Finally, the amendments limit the ability of health care providers (such as doctors and certified nurse practitioners) and emergency responders to use this emergency leave (as opposed to prohibiting their use entirely, as suggested by prior versions.)

PHELO expires on the 61st date upon enactment, or on the day the SF mayor declares the end of the public health emergency, whichever comes first.

PHELO is presently pending approval from San Francisco Mayor London Breed, who has until April 24, 2020, to sign the emergency ordinance for it to become law.

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