While many employers are concerned with complying with the recently passed statewide COVID-19 Supplemental Paid Sick Leave, employers should also be aware of the interactions between regular paid sick leave and COVID-19 related absences. As such, employers are well-served to stay current on the latest updates for San Francisco’s Paid Sick Leave Ordinance.

The San Francisco Office of Labor Standards Enforcement (OLSE) recently issued a temporary update to its guidance regarding San Francisco’s Paid Sick Leave ordinance and COVID-19. The following is a summary of the temporary changes made to that guidance.

Policies Requiring Doctor’s Notes

Under the temporarily amended guidance, policies or practices that require a doctor’s note or other documentation for the use of paid sick leave of more than five consecutive workdays (whether full or partial days) shall be deemed presumptively reasonable, provided an employee is using paid sick leave for a COVID-19 related reason and is not under a doctor’s care, the employer shall accept the employee’s attestation of the need for paid sick leave pursuant to current CDC guidelines and OLSE Rule 2.4, pertaining to potential abuse of sick leave. This change is temporary and only in effect for the duration of the COVID-19 public health emergency.

When the public health emergency ends, or upon a decision to revoke this temporary guidance, the guidance will revert back to the previous rule which stated that requiring a doctor’s note for the use of paid sick leave of three or fewer consecutive workdays shall be deemed unreasonable. The previous rule also stated that practices that required a doctor’s note for the use of paid sick leave of more than three workdays was deemed reasonable.

COVID-19 Related Reasons for Use of Paid Sick Leave

The temporary guidance sets forth several COVID-19 specific reasons for which an employee may use San Francisco Paid Sick Leave.  Those reasons are:

  • 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 takes time off work for a COVID-19 vaccination appointment or vaccination side effects.
  • 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.
  • The employee takes time off work because the employee needs to provide care for a family member to attend a COVID-19 vaccination appointment, who is experiencing vaccination side effects, or who is not sick but who public health officials or healthcare providers have required or recommended isolate or quarantine.
  • 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.

Finally, the guidance makes it clear that workers who have been laid off by their employers are not eligible for paid sick leave. Employees also are not allowed to use sick leave to supplement a reduction in hours.  The guidance states that leave is only available to use for qualifying reasons when an employee is unable to work a portion of their scheduled hours.

If you have questions about compliance with San Francisco’s Paid Sick Leave requirement or have questions about related issues, contact a Jackson Lewis attorney to discuss.

The Department of Industrial Relations’ (DIR) Labor Enforcement Task Force (LETF) has announced an initiative to inspect publicly funded construction sites to ensure employers provide worker’s compensation and follow labor laws, including workplace health and safety requirements.

With this new focus, construction employers who work on public works projects should review their workplace compliance to avoid citations.

Cal/OSHA has a guidance page for construction employers which provides an overview of issues for employers to consider and additional guidance that is available.

Some of the compliance issues that construction employers should review include:

  • Access to Work Levels
  • Airborne Contaminants
  • Confined Spaces
  • Emergency Medical Services
  • Ergonomics
  • Fall Protection
  • Heat Illness Prevention
  • Injury and Illness Prevention Program
  • Personal Protective Equipment

These and many more compliance issues are further identified on Cal/OSHA’s guidance page for construction employers.  There are also administrative requirements that employers should review, including having required postings and documents, such as safety data sheets, available on site.

If you need assistance in conducting an audit of your Cal/OSHA compliance or have questions about handling a Cal/OSHA citation, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

The same week that California’s third round of COVID-19 Supplemental Paid Sick Leave went into effect, the Governor released the state’s strategy for the endemic phase of COVID-19.

Aligning with the new endemic strategy, on February 28, the California Department of Public Health (CDPH) issued revised guidance regarding masks. Effective March 1, 2022, vaccinated and unvaccinated individuals are not required to wear masks in public settings, though it is still strongly recommended.

To address the fact that Cal/OSHA’s Amended COVID-19 Emergency Temporary Standard (ETS) still required unvaccinated individuals in the workplace to wear a mask, the Governor issued an Executive Order, which suspends the general requirement that unvaccinated workers wear face coverings when indoors. In doing so, the Governor brings the ETS into alignment with the CDPH guidance. This allows employers to follow the CDPH guidance unless a more stringent local order applies. Nevertheless, employers should keep in mind that employees may still be required to wear face coverings under CDPH’s isolation and quarantine recommendations.

Universal masking is still required under the CDPH guidance in the following indoor settings:

  • Indoors in K-12 schools and childcare facilities (this will be lifted effective March 11, 2022)
  • On public transit
  • Emergency shelters and cooling and heating centers
  • Health care settings
  • State and local correction facilities and detention centers
  • Homeless shelters
  • Long term care settings and adult senior care facilities

Employers should continue to monitor local health departments, the California Department of Public Health, and Cal/OSHA for changes to COVID-19 workplace requirements. Employers can check Jackson Lewis’ COVID-19 Advisor for updates on workplace requirements in California and around the country.

If you have questions about COVID-19 workplace requirements or related issues, contact a Jackson Lewis attorney to discuss.

On February 17, the California Senate introduced SB 1162, which—if passed—could give California the most aggressive pay transparency laws in the nation. Again. The draft California law enhances two common state law pay transparency strategies: proactive wage range disclosure and pay data reporting.

Read the full article on Jackson Lewis’ Pay Equity Advisor Blog.

On February 19, 2022, the newest statewide COVID-19 Supplemental Paid Sick Leave took effect.

California’s Division of Labor Standards Enforcement (DLSE) has published an FAQ Page to provide guidance regarding COVID-19 Supplemental Paid Sick Leave (SPSL).

The new FAQ page covers questions pertaining to the following:

  • Reasons for Taking Leave
  • Start Date and End Date
  • Requesting Leave from An Employer
  • Calculating an Employee’s Hours of Leave
  • Permissive Limits on Use and Verification
  • Credits
  • Payment of Leave, Record-Keeping, and Paystubs
  • Enforcement
  • Relation to Other Laws

There is some information in the FAQs that employers should take special note of.

Retroactive Payment

Retroactive payments are only required if the covered employee requests retroactive time for qualified absences prior to February 19, 2022.

Employers may request documentation if the employee is requesting retroactive leave for the employee or a qualifying family member testing positive for COVID-19.

This documentation could include, among other things, a medical record of the test result, an e-mail or text from the testing company with the results, a picture of the test result, or a contemporaneous text or e-mail from the employee to the employer stating that the employee or a qualifying family member tested positive for COVID-19.

If retroactive payment is being sought from the hours that an employee may use for any other qualifying reason employer may not deny a worker 2022 COVID-19 Supplemental Paid Sick Leave based solely on a lack of certification from a health care provider.

Wage Statement

The itemized wage statement or separate writing requirement ensures covered employees understand how many separate hours they have used for 2022 COVID-specific sick leave. The 2022 SPSL differs from the 2021 SPSL in that the paystub must list what has been used instead of what is available to use.  If no hours have yet been used then the paystub or other writing issued at the time wages are paid must indicate 0.

In addition, Labor Code Section 247.5 requires that records be kept for a three-year period on regular paid sick days and 2022 SPSL days accrued and used and that the records be made available to the Labor Commissioner or employee upon request.

Notice Requirement

Under California law, employers are required to display the required poster about 2022 SPSL in a place at the worksite where employees can easily read it.

If an employer’s covered employees do not frequent a workplace, the employer may satisfy the notice requirement by disseminating notice through electronic means.

If you have questions about 2022 COVID-19 Supplemental Paid Sick Leave or related issues, contact a Jackson Lewis attorney to discuss.

Last year, a divided Ninth Circuit panel found that the Federal Arbitration Act (FAA) did not completely preempt Assembly Bill (AB) 51, California’s ban on mandatory arbitration agreements. The U.S. Chamber of Commerce then filed a petition for rehearing en banc (Petition), which has been pending before the Ninth Circuit since October 2021.

On February 14, 2022, the Ninth Circuit issued an order deferring consideration of the Petition until the U.S. Supreme Court rules on Viking River Cruises, Inc. v. Moriana.  In Viking River Cruises, the U.S. Supreme Court will decide whether the FAA requires enforcement of representative action waivers in bilateral arbitration agreements, including waivers of claims brought under California’s Private Attorneys General Act (PAGA).

Although both Viking River Cruises and the legal challenge to AB 51 involve employment arbitration agreements, Judge Sandra Ikuta voted against the deferment, stating that Viking River Cruises does not raise issues relevant to the Petition.

Regardless, the wait for a decision will not be long as the U.S. Supreme Court has scheduled oral argument in Viking River Cruises for March 30, 2022. In the meantime, the preliminary injunction staying enforcement of AB 51 remains in effect pending a decision by the Ninth Circuit on the Petition, although employers should keep their eye on federal legislation awaiting President Biden’s signature that invalidates arbitration agreements and class action waivers related to sexual harassment and sexual assault claims.

Jackson Lewis attorneys will continue to track developments pertaining to employment arbitration agreements. If you have questions about these cases or issues related to arbitration agreements, contact a Jackson Lewis attorney to discuss.

On February 19, 2022, 2022 COVID-19 Supplemental Paid Sick Leave goes into effect. The legislation, similar to 2021 COVID-19 Supplemental Paid Sick Leave, requires employers with 25 or more employees to provide paid leave for reasons related to COVID-19, including the need to isolate or quarantine or to care for a family member who needs to isolate or quarantine.

The new statute also requires employers to post a notice regarding the new leave entitlement. The Division of Labor Standards Enforcement (DLSE) has published a model notice, which details the reasons leave is permitted and the amount of leave employees are entitled to take.

If employees do not frequent a physical workplace, the notice may be sent to employees electronically. This aligns with a law passed last year permitting the distribution of required postings via email to employees in addition to posting at the worksite.

The DLSE is also going to publish an FAQs page regarding the new leave, though currently the page only indicates “updates are coming soon.”

If you have questions about 2022 COVID-19 Supplemental Paid Sick Leave or related issues, contact a Jackson Lewis attorney to discuss.

In a recent decision, Peck v. Swift Transportation, the 9th Circuit dismissed an objector’s appeal of the district court’s approval of a Private Attorney General Act (PAGA) settlement.

The parties reached a proposed class and PAGA settlement. A truck driver who was not a party to the action, Lawrence Peak (Peak), objected to the PAGA settlement. The district court overruled Peak’s objection to the PAGA settlement.

On appeal, the 9th Circuit held Peak could not maintain the appeal because he was not a party to the underlying PAGA action. The 9th Circuit panel held Peak failed to demonstrate that he had a right to appeal the district court’s approval of the PAGA settlement; as one of the justices stated at oral argument, Peak was “late to the party”.

The panel rejected Peak’s arguments as to why he may appeal the PAGA settlement. While Peak was a class member in the class action, a PAGA action is distinct from a class action, and objectors to a PAGA settlement are not “parties” to a PAGA suit in the same sense that absent class members are “parties” to a class action. The fact that Peak may ultimately receive a portion of the PAGA settlement did not make him a party to the PAGA action. A PAGA action has “no individual component.” Finally, Peak’s filing of a separate PAGA action did not make him a party to this PAGA action.

This decision further separates PAGA actions from class actions, differentiating between class members in a class action, and allegedly aggrieved persons who may benefit from a PAGA action who are not deemed “parties.”

If you have questions about this decision or need assistance in defending a PAGA action, please contact the authors or another Jackson Lewis attorney.

In a recent decision, the California Court of Appeal held that a non-solicitation covenant was enforceable based on an exemption under California Business & Professions Code section 16601. The court stated, “contractual provisions that prevent a person from engaging in a profession, trade or business are generally void.” However, in the underlying case, the court affirmed a statutory exception to the prohibition against such contractual provisions, i.e., when an individual is selling the goodwill of a business and/or disposing of all their ownership interest in a business entity. In such situations, the individual may agree with the buyer to refrain from carrying on a similar business.

In the underlying case, Gregory S. Owen transferred his ownership interest in several real estate and construction-related firms he had founded to a new entity, Blue Mountain Enterprises, LLC (Blue Mountain). Owen became the company’s chief executive officer as part of the transfer.

As part of his employment contract, Owen agreed to abide by certain restrictive covenants, including a covenant barring him from soliciting Blue Mountain’s customers for three years following the termination of his employment. In April 2016, Owen was terminated from Blue Mountain for cause.

Months later, Owen established a new construction services company to compete with Blue Mountain. He sent a letter to several companies within the building and construction trades describing this new venture, including existing customers of Blue Mountain.

Blue Mountain successfully obtained preliminary and permanent injunctive relief prohibiting Owen from soliciting Blue Mountain’s customers and prevailed on its motion for summary adjudication of its breach of contract claim.

On a consolidated appeal, Owen challenged the trial court’s order granting summary adjudication in favor of Blue Mountain and contended that the non-solicitation covenant was unenforceable because it did not meet the requirements for a statutory exemption under California Business & Professions Code section 166601. The Court of Appeal disagreed with Owen and upheld the motion for summary adjudication.

If you have questions on non-solicitation agreements or related issues, contact a Jackson Lewis attorney to discuss.

 

On February 9, 2022, California Governor Gavin Newsom signed Senate Bill (SB) 114 which resurrects COVID-19 Supplemental Paid Sick Leave (SPSL) for 2022.

The following are answers that employers need to their questions regarding the latest edition of California SPSL.

When does SPSL become effective?

SPSL becomes effective February 19, 2022, 10 days after enactment. However, the statute applies retroactively to January 1, 2022.

How long will SPSL be in effect?

SPSL requirements will remain in effect until September 30, 2022.

Which employers are covered?

Employers with 26 employees or more must provide leave under the latest edition of SPSL.

Which employees are covered?

An employee of a covered employer who is unable to work or telework because of covered reasons. There is no length of service requirement.

What are the covered reasons for using SPSL?

The following are covered reasons for using SPSL:

  1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention (CDC), or a local public health officer who has jurisdiction over the workplace.
  2. The covered employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
  3. The covered employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19.
  4. The covered employee is experiencing symptoms or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevents 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 guidance or who has been advised to isolate or 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.

How many hours of SPSL are employees entitled to take?

A full-time covered employee is entitled to 40 hours of SPSL for the reasons detailed above. A part-time covered employee is entitled to a proportionate number of hours of SPSL based on the type of schedule the employee maintains for the reasons detailed above.

Both full and part-time employees are entitled to an additional amount of time, equal to their allotment for the reasons detailed above if the employee or family member for whom the employee is caring for tests positive for COVID-19 (e.g., full-time employees are entitled to an additional 40 hours). Employers are permitted to require documentation of the positive test to provide leave for this reason.

The maximum amount of SPSL a full-time employee can take during the period from January 1 to September 30, 2022, is 80 hours.  If an employee is eligible for exclusion pay under the Cal/OSHA Emergency Temporary Standard, SPSL hours cannot be used to offset any exclusion pay obligation.

Are there permitted limitations on the use of SPSL?

While SPSL allows for time off for vaccination, including receiving a booster, employers may limit the leave for symptoms for each vaccination or booster to 3 days or 24 hours unless the employee provides verification from a health care provider that the employee (or their family member) is continuing to experience adverse symptoms.

Are employers permitted to request documentation of an employee testing positive for COVID-19?

If an employee requests leave because they tested positive for COVID-19 or to care for a family member who tested positive for COVID-19, then the employer may request documentation of the positive test.

What type of notice do employers need to provide to employees regarding SPSL?

Employers must provide employees with written notice that sets forth the amount of SPSL the employee has used through the pay period in which it was due on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date. The employer shall list zero hours used if a worker has not used any SPSL.

Employers are required to post a notice to be developed by the Labor Commissioner about this new SPSL benefit. If an employer’s covered employees do not frequent a workplace, the employer may satisfy this requirement by disseminating the notice through electronic means, such as e-mail.

What is the rate of pay that a non-exempt employee is compensated for SPSL?

Non-exempt employees shall be compensated based on one of the following:

  • Calculated in the same manner as the regular rate of pay for the workweek in which the employees uses SPSL.
  • Calculated by dividing the total wages, not including overtime premium pay, by the total hours worked, in the full pay periods of the prior 90 days worked.

What is the rate of pay that exempt employees are compensated for SPSL?

SPLS used by an exempt employee shall be paid in the same manner as other forms of paid leave time.

Is there a maximum amount the employer can be required to pay for SPSL?

Yes, an employer shall not be required to pay more than $511 per day and $5,110.00 in aggregate to a covered employee.

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If you have other questions regarding COVID-19 Supplemental Paid Sick Leave or need assistance with compliance, please do not hesitate to contact a Jackson Lewis attorney to discuss.