Here is installment #20 of our ongoing series of COVID-related posts of interest to California employers. One caveat before we begin today’s summary. Although we are trying to keep up with the important issues so we can digest and report them to you, we simply can’t keep up with *all* of them. The federal, state and local agencies, elected officials, courts, etc. are just more productive than we are. It therefore is important to keep checking state and local websites for information on new developments, and to read multiple sources of information.
To that end, California has centralized a good amount of state-wide, COVID-related employment law information here. However, also check the governor’s website (here) the state COVID webpage (here) and don’t forget your county’s and city’s webpages. On the federal level, check with each agency’s COVID websites, such as the EEOC’s (here). Each federal agency seems to have a special COVID sub-page.
We are dismayed that we cannot be the central source for all COVID-related employment law developments. We nevertheless hope our contribution to the knowledge base is of use to our readers. With that, here is our 20th summary:
DOL Revises COVID FMLA / Sick Leave Regulations in Response to NY District Court Decision
We posted about the district court decision in NY v. DOL in installment # 19 (here). The district court in that case invalidated some of the U.S. Department of Labor’s regulations implementing the Families First Coronavirus Response Act’s special FMLA and paid sick leave provisions. The DOL has re-issued regulations in response, which you can find here.
The DOL summarized the revisions as follows:
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Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
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Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
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Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
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Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
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Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.
Thus, the DOL will not significantly change its initial regulations, except as to the definition of “healthcare provider.” We’ll see if there is another legal challenge, although the whole leave program is supposed to end at the end of this year anyway.
A link to the revised regulations is here. The DOL plans to publish them on September 16, and they will take effect immediately upon publication in the Federal Register.
California Legislature Codifies Special Coronavirus Supplemental Paid Sick Leaves for Employers Not Covered by Federal FFCRA Paid Sick Leave
As you may recall, Governor Newsom issued an Executive Order back in April 2020, granting special paid sick leave to certain foodservice and food industry workers affected by COVID-19. We covered that back in installment # 8 of our series (here). In addition, several localities (San Francisco, San Jose, LA, Oakland, e.g.,) issued special ordinances granting special sick and paid family and medical leave benefits to employees of employers > 500 workers in response to the federal FFCRA, which applied only to businesses with fewer than 500 workers.
The Legislature has now stepped in with a new, COVID-related, paid sick leave benefit applicable to most employers having more than 500 employees. The new law, AB 1867 is here.
AB 1867 does a number of things –
- Codifies the April Executive Order regarding foodservice workers;
- Expands Supplemental Sick Leave to non-foodservice workers who are not covered by FFCRA as specified in the statute (most employers of 500 workers or more)
- Allows other employees of “hiring entities” having more than 500 employees anywhere to take up to 80 hours of paid sick leave for reasons such as
(A) The covered worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
(B) The covered worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
(C) The covered worker is prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.
4. Allows the Labor Commissioner to treat Supplemental COVID sick leave the same as paid sick leave under the Labor Code
5. Requires a notice / poster.
6. Permits employers that have already provided supplemental paid sick leave to coordinate those benefits with the 80 hours of supplemental sick leave. So, to the extent employers have provided supplemental sick leave under local ordinances or executive orders already, they don’t have to do it twice if the previous benefits were equal to or greater than what AB 1867 requires.
7. Also note that employers cannot require workers to take other forms of leave (California “regular” sick leave, PTO, etc.) before supplemental COVID sick leave if they otherwise qualify for it.
8. The bill explains how the hours are pro-rated for part-timers, and explains how the pay is calculated for those workers paid other than on a straight hourly basis, etc.
That’s it for now. However, stay tuned for some non-COVID updates coming soon. The Legislature’s bills are being signed as we speak, and it’s going to be a busy fall season getting ready for complying with the new employment laws coming in 2021.
