California Releases COVID-19 “Playbook” for Reopening Businesses

Following the July 24th release of their guidance entitled “COVID-19 Employer Playbook For a Safe Reopening,” the California Department of Public Health (CDPH) has updated a 32-page document to help California employers plan and prepare for reopening their businesses and to support a safe, clean environment for workers and customers.

Summary of the Guidance

The main focus of the update is to help employers reopen their businesses safely. According to the CDPH, business operation decisions should be based on both the level of disease transmission in the community and a company’s readiness to protect the safety and health of its workers and customers.  As such, the agency advises that all employers should collaborate with workers and unions to effectively communicate important COVID-19 information and must implement (and update as necessary) a plan that:

  • Is specific to their workplace;
  • Identifies all areas and job tasks with potential exposures to COVID-19;
  • Includes control measures to eliminate or reduce such exposures;
  • Maintains healthy business operations;
  • Maintains a healthy work environment;
  • Provides effective training for workers; and
  • Encourages workers to give input into an effective workplace plan.

Other subjects covered in the playbook include:

  • How to manage an outbreak;
  • When workers can return to work;
  • Regulations and guidance for COVID-19 reporting and disclosures;
  • Protected leaves;
  • Unemployment benefits; and
  • Workers’ Compensation

Takeaway

Even though the CDPH’s “COVID-19 Employer Playbook For a Safe Reopening” was created for California-based employers, it is still a good resource for employers in any state to gain a high-level understanding of some of the issues that they might be facing during the COVID-19 pandemic. The global COVID-19 pandemic is still an evolving situation, with new local, state, and federal orders being issued on a regular basis.  Because of this, all employers in all states should be keeping up to date with these regulations that might affect their business operations.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Court Vacates Parts of the Families First Coronavirus Response Act

On August 3rd, 2020, the federal court for the Southern District of New York (Court) struck down four parts of the regulations adopted by the Department of Labor (DOL) pursuant to the Families First Coronavirus Response Act (FFCRA). This ruling (State of New York v. U.S. Department of Labor, No. 1:20-cv-03020) comes four months after the regulations went into effect, and five months before the FFCRA is set to expire on December 31st, 2020.

Among other provisions, the FFCRA includes the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). On April 1st, 2020, the DOL finalized “temporary” regulations, which went into effect immediately and described the obligations of employers and the rights of employees under the EFMLEA and EPSLA mandates.

Summary of the Court Decision

Shortly after the DOL issued its FFCRA regulations, the State of New York filed a lawsuit in federal court challenging some of the provisions. The following are the four mandates that were vacated by the August 3rd decision:

  1. The definition of who qualifies for the healthcare provider exemption. Under both the EPSLA and the EFMLEA, an exemption to the paid sick leave and paid family leave requirements applies to an employer of “a health care provider or an emergency responder.” The DOL’s regulations contained a definition and examples of the term “health care provider” for purposes of determining who may be excluded from receiving FFCRA leave. According to the ruling, the DOL went too far in defining health care providers as “anyone employed at” a doctor’s office, hospital, medical school or a number of other facilities “where medical services are provided.” This definition appears far broader than the definition of “health care provider” under existing Family and Medical Leave Act regulations.
  2. The exclusion from benefits of employees whose employers do not have work for them. The EPSLA grants paid leave to employees unable to work or telework due to a need for leave because any of six COVID-19-related criteria. The EFMLEA similarly applies to employees “unable to work (or telework) due to a need for leave to care for . . . [a child] due to a public health emergency.”
      • New York took aim at the DOL’s statement that otherwise statutorily mandated paid leave under the FFCRA is not available when the employer does not have work for the employee. This “work-availability requirement” specifically applies to the use of leave under the EPSLA where (i) the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19; or (ii) the employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to quarantine; or under either the EPSLA or EFMLEA where the employee is caring for a child if the school or place of care of the child has been closed, or the child care provider is unavailable, due to COVID-19 precautions.
      • The DOL argued that if an employee took leave under any of those reasons, they would not be available for work, regardless of the need for leave. The Court disagreed and found the differential treatment of the six EPSLA reasons “entirely unreasoned” and “manifestly contrary to the statute’s language, given that the six qualifying conditions share a single statutory umbrella provision…” As a result, the work-availability requirement was not a permissible interpretation of the statute.
  3. The requirement that employees secure consent for intermittent leave for certain qualifying reasons. The FFCRA permits “employees to take Paid Sick Leave or Expanded Family and Medical Leave intermittently (i.e., in separate periods of time, rather than one continuous period) only if the Employer and Employee agree,” and, even then, only for a subset of the qualifying conditions. Under the regulations, the exercise of intermittent leave is limited to “circumstances where there is a minimal risk that the employee will spread COVID-19 to other employees.” The regulations also provide that intermittent leave may apply in other circumstances that “do not implicate the same public-health considerations” – but only with employer approval. This limitation was rejected by the Court as “entirely unreasoned” and therefore impermissible.
  4. The requirement for documentation before taking leave. The DOL regulations contain several provisions regarding appropriate documentation when an employee wants to use leave under the EPSLA or EFMLEA. Specifically, the regulations note that the employee must provide documentation containing the following information prior to taking leave: (1) employee’s name; (2) the date(s) requested for leave; (3) qualifying reason for the leave; and (4) a statement that the employee is unable to work because of the qualifying reason for leave.

While the FFCRA does not specify any documentation requirement, it notes the following with respect to employee notice — “After the first workday (or portion thereof) an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.” The Court vacated the part of the regulation’s documentation provision stating that employees must provide the required documentation before taking leave, finding the requirement inconsistent with the timing set forth in FFCRA notice provisions.

Employer Takeaway

The DOL has 30 days to appeal the decision or request a stay. The ruling clearly applies in the Southern District of New York, however, its impact outside of the district is uncertain as of the date of this post. All employers  covered by the FFCRA, however, should become familiar with the decision and the possible effect it might have on their administration of paid leave requests under the FFCRA.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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New Employer Guidance Released on COVID-19 Testing, Leave, and Salary

On July 20th, 2020, the U.S. Department of Labor (DOL) published additional COVID-19 guidance for employers on how the requirements of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA) affect workplaces as they reopen during the global coronavirus pandemic. The newly updated resources from the DOL’s Wage and Hour Division (WHD) consists of commonly asked questions and answers that address critical issues within all three laws. Some topics addressed include:

  • Hazard pay in relation to the FLSA and COVID-19 – The WHD states that the FLSA does not require an employer to pay an employee hazard pay if they are working during the pandemic.
  • Salaried employees’ rights under the FFCRA – If a salaried employee takes paid sick leave or expanded family and medical leave under the FFCRA, it will not affect their status or eligibility for other leave under normal FLSA requirements.
  • Telemedicine designations under the FMLA – Until December 31st, 2020, the WHD will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be signatures, for the purpose of establishing a serious health condition under the FMLA. To qualify as an in-person visit, the telemedicine visit must: include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities.
  • Employee COVID-19 testing and its relationship to the FMLA – According to the WHD, the FMLA does not prohibit an employer to require COVID-19 testing. This includes the testing of employees who may been out on unrelated FMLA leave when workplace testing became a requirement.

Links to New Guidance

To access the guidance, visit:

Previously Released Guidance

This guidance is the latest addition to compliance assistance materials that the WHD has published during the COVID-19 pandemic. Previously released materials include a Fact Sheet for Employees, a Fact Sheet for Employers, and a Questions and Answers resource about paid sick and expanded family and medical leave under the FFCRA. The WHD has also produced:

Background on the FFCRA

The FFCRA went into effect on April 1st to help the U.S. combat COVID-19 by reimbursing, through tax credits, American businesses with fewer than 500 employees for the cost of providing employees with paid leave taken for specified reasons related to the coronavirus. The legislation enables employers to provide such paid leave, while at the same time not forcing workers to choose between their paychecks and the public health measures needed to combat the virus.

Additional information on common issues employers and employees face when responding to the coronavirus and its effects on wages and hours worked under the FLSA, and job-protected leave under the FMLA can be found on the WHD’s COVID-19 website.

 


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Department of Labor Seeks Input on Family and Medical Leave

On July 16th, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced that it was starting to take significant steps to streamline optional-use forms that workers can use to request, and employers can use to coordinate, leave under the Family and Medical Leave Act (FMLA). Additionally, on July 17th, the WHD published a Request for Information (RFI) in the Federal Register seeking the public’s feedback on the FMLA’s overall administration and use.

 Improvements to Leave Request Forms

The WHD considers the new forms to be simpler and easier for employees, employers, leave administrators, and healthcare providers to understand and use. Revised with substantial public input, the forms include more questions that users can answer by checking a response box and electronic signature features to reduce contact during the global coronavirus pandemic. The Division believes the changes will reduce the time users spend providing information, improve communications between leave applicants and administrators, and reduce the likelihood of violations.

“The improvements we announced…reflect the ongoing commitment of the U.S. Department of Labor’s Wage and Hour Division to support workers’ families and those who employ them at a time they need it most,” said Wage and Hour Division Administrator Cheryl Stanton. “Making application and administration of the Family and Medical Leave Act more efficient and seeking public input for continued improvements ensures the effective implementation of the law and compliance with it.”

Feedback from Employers

The RFI published by WHD seeks to obtain feedback on the challenges that employers face and gather best practices that they utilize in the use and administration of the FMLA in the workplace. The information when collected will help the Division identify areas for additional compliance assistance to ensure that the FMLA is understood by employers and employees alike. The comment period for the RFI closes on September 15th.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Federal Agencies Issue Proposed Rule for Health Plan Flexibility

On July 10th, 2020, the U.S. Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury released a joint proposed rule to amend the requirements for grandfathered group health plans and grandfathered group health insurance coverage in order to preserve their grandfather status.

Under the Patient Protection and Affordable Care Act (ACA), certain group health plans and health insurance coverage that existed at the time of the law’s enactment received a designation as “grandfathered health plans.” Grandfathered group health plans are only subject to some of the ACA’s requirements, such as the prohibition on preexisting condition exclusions. They remain, however, exempt from many other stipulations.

Removing Affordable Care Act Provisions

This proposed rule begins the process of removing portions of the current ACA’s framework. On January 20th, 2017, President Donald J. Trump signed an Executive Order directing the DOL, HHS, and Treasury to minimize what he views as the unwarranted economic and regulatory burdens of the ACA. Consistent with this direction, the three Departments issued a request for information in February 2019 to gather input from the public to determine whether there are opportunities to assist plans and issuers, consistent with the law, in preserving grandfather status in ways that would benefit employers, plan participants, beneficiaries, and other stakeholders.

Proposed Clarifications and Alternatives

Based on the feedback received, the proposed rule provides greater flexibility for grandfathered group health coverage in two ways:

  • First, the proposed rule clarifies that grandfathered group health coverage classified as a high-deductible health plan (HDHP) may increase fixed-amount cost-sharing requirements, such as deductibles, to the extent necessary to maintain their status as an HDHP without losing grandfather status. This change would ensure that participants and beneficiaries enrolled in that coverage remain eligible to contribute to a health savings account.
  • Second, the proposed rule provides an alternative method of measuring permitted increases in fixed-amount cost sharing that would allow plans and issuers to better account for changes in the costs of health coverage over time.

In order to be considered, public comments need to be received by August 14th, 2020.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL Issues Five New  Wage & Hour Opinion Letters

On June 25th, 2020, the U.S. Department of Labor (DOL) announced the publication of five new wage & hour opinion letters that address compliance issues related to the Fair Labor Standards Act (FLSA). An opinion letter is an official, written opinion by the DOL’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances presented by the entity that requested the letter.

New Guidance on Wage & Hour Issues

The new wage & hour opinion letters consist of:

  • FLSA2020-6 – This letter addresses whether salespeople who travel to different locations to sell products using their employer’s mobile assets qualify for the outside sales exemption under FLSA section 13(a)(1);
  • FLSA2020-7 – In this opinion letter, the WHD decides whether an automobile manufacturer’s direct payments to an automobile dealership’s employee, compensating the employee for work done on behalf of the dealership, may count toward the dealership’s minimum wage obligation to the employee under the FLSA;
  • FLSA2020-8 – This letter addresses whether salespeople who set up displays and perform demonstrations at various retail locations not owned, operated, or controlled by their employer to sell the employer’s products qualify for the outside sales employee exemption under Section 13(a)(1) of the FLSA;
  • FLSA2020-9 – This opinion letter offers insight into if emergency-management coordinators employed by a county government qualify for administrative exemptions under Section 13(a)(1) of the FLSA; and
  • FLSA2020-10: This letter addresses the application of the retail or service commission sales exemption under Section 7(i) of the FLSA, where more than half of an employee’s compensation in the relevant representative period ultimately does not consist of commissions.

Finding Other Opinion Letters

In addition to the latest releases, the public can also search for existing opinion letters by keyword, year, topic, and a variety of other filters on the WHD’s website. The DOL also encourages the public to submit requests for opinion letters to the WHD in order to obtain an opinion or to determine whether existing guidance already addresses their questions.

See also:  Final Rule Makes Pay Bonuses More Accessible

 


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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CDC Expands List of Individuals at Risk for Severe COVID-19 Illness

The Centers for Disease Control and Prevention (CDC) has released an update to their previously issued list of who is at a higher risk for getting severely ill from COVID-19.  Published on June 25th, 2020, the newly expanded list still includes older adults and people with underlying medical conditions as the majority of those who are at an increased risk, but has expanded on those age- and condition-related situations.

 Age-Related Risks

The CDC has removed the specific age threshold from the older adult classification. The agency now warns that among adults, risk increases steadily as you age, and it’s not just those over the age of 65 who are at increased risk for severe illness.

Recent data, including the CDC’s Morbidity and Mortality Weekly Report (MMWR) published on June 19th, 2020, has shown that the older a person is, the higher their risk of severe illness from COVID-19. Age is an independent risk factor for severe illness, but risk in older adults is also in part related to the increased likelihood that older adults also have underlying medical conditions.

Underlying Medical Conditions

The CDC also updated the list of underlying medical conditions that increase risk of severe illness after reviewing published reports, pre-print studies, and various other data sources. There was consistent evidence among those resources showing that specific conditions increase a person’s risk of severe COVID-19 illness. Those include:

  • Chronic kidney disease
  • COPD (chronic obstructive pulmonary disease)
  • Obesity (BMI of 30 or higher)
  • Immunocompromised state (weakened immune system) from solid organ transplant
  • Serious heart conditions, such as heart failure, coronary artery disease, or cardiomyopathies
  • Sickle cell disease
  • Type 2 diabetes

These changes increase the number of people who fall into higher risk groups. An estimated 60 percent of American adults have at least one chronic medical condition. The more underlying medical conditions people have, the higher their risk.

CDC also clarified the list of other conditions that might increase a person’s risk of severe illness, including additions such as asthma, high blood pressure, neurologic conditions such as dementia, cerebrovascular disease such as stroke, and pregnancy. Of note, pregnant women who contract COVID-19 were significantly more likely to be hospitalized, admitted to the intensive care unit, and receive mechanical ventilation than nonpregnant women; however, pregnant women were not at greater risk for death from the virus.

For more information of the latest COVID-19 news and information on how to prevent getting sick, visit the CDC’s website.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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CCPA Enforcement Deadline Looms for Businesses

On January 1st, 2020, the California Consumer Privacy Act (CCPA) went into effect, protecting consumers’ privacy rights by placing obligations on how businesses collect, use, and share the personal information of California residents. Included within the protections, the CCPA provides affected consumers with the right to:

  • know what personal data is being collected about them;
  • know whether their personal data is sold or disclosed and to whom;
  • say no to the sale of personal data;
  • access their personal data;
  • request a business to delete any personal information about a consumer collected from that consumer; and
  • exercise their privacy rights without fear of discrimination.

Beginning on July 1st, 2020, the California Attorney General’s (AG’s) office can bring enforcement actions with penalties against any business that is found to have violated the CCPA. Violators will be sent a 30-day notice to fix any instance of non-compliance.  If violations are not cured during that period, the AG can seek penalties of up to $2,500 per violation, or up to $7,500 per intentional violation.

Recommended Action Steps

With the CCPA enforcement deadline quickly approaching, companies must make any final and necessary preparations to ensure that their websites comply with the CCPA. The following are some suggested actions to take to avoid fines and penalties:

  1. Make Sure Your Privacy Notice and Website are Updated – Consumers and even employees, especially those located in California, should be given an updated notice of their rights with respect to the gathering and storage of their personal data.
  2. Know what Data Your Business Stores – California consumers now have the right to know (under the CCPA) what personal information is being maintained by a business, and which third parties may have also received that information. It is critical that companies know what data is being kept and can respond to related consumer requests in a timely and accurate manner.
  3. Make Sure Employees are Trained on the CCPA – Any employee responsible for responding to consumer requests under the CCPA must receive training on how to do so in a manner that is consistent with the regulation.
  4. Ensure Security Procedures and Practices – Under the CCPA, California consumers can sue for breaches of their personal information that occurred because of a company’s failure to maintain and implement reasonable security procedures and practices. Businesses should ensure that they have appropriate practices for the storage and destruction of personal information.
  5. Consult with Company Service Providers – If a business discloses consumer personal information to a service provider, they should make sure that any contract that governs that service relationship includes and ensures CCPA-specific provisions and compliance.

NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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OSHA Releases New Guidance on Returning to Work

On June 18th, 2020, the U.S. Department of Labor’s (DOL’s) Occupational Safety and Health Administration (OSHA) issued new guidance to assist employers as they reopen non-essential businesses.  The guidance provides suggestions for working with their employees who are returning to work during the evolving coronavirus pandemic.

The new resource, titled “Guidance on Returning to Work,” supplements the DOL and U.S. Department of Health and Human Services’ previously developed “Guidance on Preparing Workplaces for COVID-19” and the White House’s “Guidelines for Opening up America Again.” In the new document, OSHA provides general principles for updating restrictions originally put in place to slow the spread of the coronavirus.

During each phase of the reopening process, the DOL recommends that employers should continue to focus on:

  • strategies for basic hygiene;
  • social distancing;
  • identification and isolation of sick employees;
  • workplace controls and flexibilities; and
  • employee training.

As non-essential businesses continue to reopen, employers must also follow public health recommendations from the Centers for Disease Control and Prevention and other federal, state, or local government requirements or guidelines. Following the latest guidance will help businesses remain in compliance with OSHA’s General Duty Clause, which requires workers to be provided a safe and healthful workplace, free of possible harm or injury.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Supreme Court Ruling: Title VII Prohibits LGBTQ Discrimination

On June 15th, 2020, in a 6-3 decision, the U.S. Supreme Court ruled that employment discrimination on the basis of sexual orientation and/or gender identity is prohibited under federal civil rights law, speficially Title VII of the 1964 Civil Rights Act (Title VII).

In the majority opinion, Justice Neil Gorsuch stated: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

By definition, Title VII explicitly prohibits discrimination in the workplace on the basis of race, religion, national origin, and sex. In this decision, the court has ruled that the idea of “sex” is a distinct characteristic but inseparable from the concepts of sexual orientation and gender identity.

The court’s ruling was based on two sets of cases. The first set concerned a pair of lawsuits from gay men who said they were fired because of their sexual orientation (Bostock v. Clayton County, Ga., No. 17-1618, and Altitude Express Inc. v. Zarda, No. 17-1623). The second set involved a case on gender identity where a transgender woman claimed she was fired after she announced her gender identity and informed coworkers that she would start working in women’s clothing (R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107).

While Title VII only applies federally to employers with 15 or more employees, 21 states have their own laws prohibiting job discrimination based on sexual orientation or gender identity. Seven more provide that protection only to public employees. Some of these state laws could apply to small employers with as few as 1 employee, depending on the state. Employers need to investigate which, if any, state-specific sexual orientation and/or gender identity anti-discrimination laws they need to follow, and make sure that all employees are fully trained on the workplace’s discrimination prevention policies and procedures.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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