California Passes Several
COVID-19 Specific Laws
My son runs Cross Country. For those of you unfamiliar with the spectator experience, the races are generally held at a park and the course covers 3 miles. As a spectator, you have to choose a spot or two from which to watch part of the race. Unlike Track season when you can grab a seat in the stadium, sit back relax and watch the whole race from start to finish, a Cross Country race menders through the countryside and unless you want to run the entire race with the team, you are going to miss pretty much the entire race, except maybe the start and finish, which are typically at the same spot. The start is always exciting with hundreds of runners lined up ready to go. Other than the starter’s call: “On your mark, get set” there isn't a sound until the loud pop of the gun followed by the ground shaking as the mob of runners burst out and head down the path on the 2.9 mile race. That assumes it goes perfectly. Frequently, it’s “On your mark, get set”, gun and then another gun because of a false/early start by someone, which then requires everyone to return to the starting line and do it all over again.
Keeping up with Covid-19 related employment laws reminds me of a Cross Country race, from the spectator’s perspective. A lot of false starts and do overs. We saw the start and one day we might see the finish, but most of the middle requires a lot of imagination. As I indicated in the last edition, I want to update you on the legal landscape, but need to break it up into a few segments to try and keep it somewhat manageable. Based on the volume of questions I receive, the current leading area of confusion relates to Covid-19 related Leaves of Absence, so that’s where we will start.
Federal: The most relevant Federal law is the Paid Sick Leave and expanded Family Medical Leave (FMLA), both of which were included in the March emergency legislation affectionately referred to as Families First Coronavirus Response Act (FFCRA). Federal law has never previously required PAID leave, but there were various Federal laws that required some employers under some circumstances to allow protected UNPAID leave, including the FMLA. As of April 1, 2020 and until December 31, 2020, under the new law, employers with fewer than 500 employees are required to provide partially PAID leave for reasons connected to Covid-19. Two weeks of partially PAID leave is required for employees who meet any of the following criteria:
- Subject to a Federal, State or local quarantine or isolation order related to Covid-19.
- Advised by a healthcare provider to self-quarantine related to Covid-19.
- Experiencing Covid-19 symptoms and is seeking a medical diagnosis.
- Is caring for an individual subject to #1 or #2.
- Is caring for their child who’s school or place of care is closed due to Covid-19, or
- Is experiencing any other substantially similar condition specified by US Dept. of Health and Human Services.
Partially PAID leave for an additional 10 weeks (total of 12) is available under the expanded FMLA, but only for reason #5 (above).
The percentage of pay is 100% for reasons 1-3 above, up to a maximum of $511/day and $5110/total; 2/3 for reasons 4 and 6 up to $200/day and $2,000./total; and for extended FMLA reason 5 $200/day and $12,000./total.
There are too many factors, exceptions and rules related to coverage on these laws, which in many areas are industry specific, to go to deeply, but feel free to reach out to me to discuss specific concerns. However, I do want to bring one recent development to your attention. When the legislation passed, Congress indicated the US Department of Labor (DOL) would be issuing “Guidelines” to help employers interpret, and therefore comply with the new law. The DOL followed up with several incremental sets of Guidelines addressing various aspects of the new law and how they interpreted it for enforcement purposes. So far, so good. However, the New York Attorney General sued the US DOL in New York Federal Court, challenging some of the “Guidelines” as exceeding the actual law. The N.Y. Federal Court agreed with many of the issues raised by the N.Y. Attorney General, basically finding many of the DOL Guidelines were wrong. Visions of Cross Country false starts.
One of the more significant aspects of the DOL Guidelines the N.Y. Fed Judge determined to be wrong relates to the “Availability of Work.” The DOL Guidelines indicate if the employer doesn’t have “Available Work” for the employee to do because they are shut down completely or operating at reduced levels due to Covid-19, they are not required to provide paid leave. In other words, if there isn’t work available to take the PAID leave from, there can’t be “Leave”. The N.Y. Federal Judge disagreed and ruled that even if there isn’t available work to take the leave from, the paid leave is still required under the law. This creates a lot of confusion and unpredictability for employers relying on the DOL Guidelines that have been rejecting any responsibility for PAID leave in reliance on the DOL Guidelines. Currently, the decision is only binding on employers in NY and the DOL is standing behind their original interpretation on this issue, but have revised their original Guidelines with respect to other aspects of the Judge’s ruling. What to make of this? My opinion is the DOL won’t pursue employers for violations that occur while relying on their Guidelines, but that doesn’t prevent employees from pursuing private lawsuits for violations of the law in Fed court and so far we don’t have a Fed court’s interpretation outside NY.
New California Statutes:
AB 1867 was signed into law September 9, 2020. It expands the paid sick leave requirements to employers with 500 or more employees that were excluded under the Federal PAID sick leave within the FFCRA. Like the Federal law it expires on December 31, 2010. It also covers certain employees that may have been prevented from accessing the Federal paid sick leave benefits because their employers characterized them as “Essential Workers”, such as healthcare and food industry workers. Full time employees are generally entitled to the same 80 hours of paid sick leave as the Federal counterpart. Part time employees are entitled to the same number of hours they would have worked based on a regular two week schedule. Pay is capped at same level as Federal counterpart above.
SB 1383 was passed through the CA Legislature on July 2, 2020 and is currently pending the Governor’s approval, which is inevitable in my opinion. This new law basically expands the existing California Family Rights Act (CFRA), which previously only applied to employers with 50 or more employees to cover employers with 5 or more employees. It does not introduce any new requirement for PAID leave, but allows for 12 weeks of job protected UNPAID leave, for the same reasons the CFRA previously did.
SB 1159 was signed into law by the Governor on September 17, 2020. This new law relates to Covid-19 issues associated with Workers’ Compensation and will be covered in detail in another edition. One aspect of the law that is relevant to the current topic and likely to create conflicts between employers and their workers’ comp. insurance carriers, is the provision that requires employees to exhaust “PAID sick leave benefits specifically available in response to Covid-19 before any Temporary Disability benefits are due and payable.”
Stay Tuned
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