ISN'T IT IRONIC?

It has been a few months since I sent out a newsletter.  I wanted to give you a break from my barrage around March - May and let the proverbial legal dust settle a bit expecting we would have greater clarity by now from the Federal and CA legislatures.  The expectation was a 2nd Federal Covid relief package would be hammered out by now addressing issues such as employer liability protections, whether the $600.00 Fed. unemployment benefit would continue past the 7/31 expiration date, status of paycheck protection loan programs, etc.  No agreement was reached and Congress has adjourned.  A few Executive Orders  were signed by president Trump, such as the $400.00 weekly unemployment benefit extension (conditioned on the States paying 25% of that, but nobody is sure if those were legal, so for the near future, they are practically irrelevant.  The original Covid-19 relief package included the Families First Coronavirus Response Act, which remains in effect until 12/31/20. I detailed the massive changes involved with that legislation in my last several newsletters which are available on our website.  Congress indicated the new law, and specifically how employers would need to interpret and comply with it, would be addressed by the US Department of Labor, which then followed up with several sets of Guidelines.  The theory at the time was employers could have some level of compliance confidence if they adhered to those DOL Guidelines.  However, the New York Attorney General challenged the DOL Guidelines in New York Federal Court, arguing the DOL had misinterpreted the law and allowed employers to exclude too many employees.  The New York Federal Court agreed, basically invalidating the specific interpretation that was being challenged, which related to who is, and who is not, a "healthcare worker" for purposes of paid sick leave and expanded FMLA leave exemption status.  So far that court decision is only applicable to the healthcare industry in that Federal District, but it conveys a much larger warning to all employers everywhere, which is you can't be confident in your legal compliance under the FFCRA based on the DOL Guidelines, even though Congress said you could when they created the law.  More questions in September  than answers in May on the Federal side.

However, the CA General Assembly never waits around for Congress, especially when it comes to employment laws, and 99.9% of the time CA will make the pill twice as hard to swallow for CA employers, so that is typically our compliance focus in the employment law area. CA is never reluctant to add to the burden employers already deal with under Federal law, and just when you think you are compliant in CA, they change and/or add to the existing legal minefield.  Once a year I get "updates" to my CA employment law library.  The photo (above) shows the pages from a single volume that reflect 2019 law, that is now being replaced by 2020 law, and is therefore obsolete. The CA General Assembly had at least 10 sponsored bills bouncing around between the House and Senate, all of which were bad news for CA employers (as usual), that were intended to address employment and workers' compensation changes in response to Covid-19,so I have been waiting to see how bad it would be before reporting the results to you.  

Here is where we finally reach the Irony.  The CA Constitutional deadline for getting the various bills debated and approved by both branches for the Governor was midnight on Aug 31st, but because they had to shut down a few times in the closing days to self-quarantine due to several legislators testing positive for Covid-19, they ran out of time and only managed to get two bills ready for the Governor's review.  He has until September 30, to sign, veto or allow to become law without his signature.   Inevitably he will sign both, but it could have been much worse.

In the next several weeks I will provide some follow up articles addressing the new laws in more detail and also discussing some issues to be aware of due to our current new normal.  They will include-

New Law: 
*SB 1159 the one Workers' Comp Covid-19 bill passed and on the way to Governor's approval. It creates a presumption for certain employees of industrial causation of Covid-19.
*SB 1383 expands CFRA unpaid leave obligations to employers with 5 or more employees.  It  currently only applies to employers with 50 or more employees.

New Considerations Under Existing Law:
*Labor Code 2802 requires employers to reimburse employees for business related expenses.  With employees now working from home that were previously in the office, this can include increased internet, electric, cell/land phone expenses.
*Employers requiring Covid-19 testing may have to pay for the time spent getting tested.
*Vaccines will be available sooner or later.  Can an employer require employees to be vaccinated?
* Tracking meal/rest periods for remote non-exempt workers. 

Feel free to contact me anytime with any issues that will be covered later.
 
 One More thing...
** Friendly reminder that new CA FEHA Anti-Harassment Training requirement deadline is 1/1/21.  For all CA employers with 5 or more employees there is 1 hour of training for all employees and 2 hours of training for all managers and supervisors.  I can conduct the training if you still need it.