On September 17, 2020, Governor Gavin Newsom signed into law two COVID-19 related bills – Senate Bill (“SB”) 1159 and Assembly Bill (“AB”) 685.  SB 1159 is an urgency bill that is now effective immediately, and sets forth rebuttable presumption standards to establish workers’ compensation coverage for employees who contract COVID-19.  AB 685 modifies occupational safety standards to require employers to provide notice and report information related to COVID-19 exposures, and provides the California Division of Occupational Safety and Health (“Cal/OSHA”) expanded authority to enforce such requirements and ensure safe workplace operations.  AB 685 is effective January 1, 2021.

Below is a summary of both bills and their impact on employers.

SB 1159

SB 1159 amends existing workers’ compensation laws to address the impact of employees who contract COVID-19 and the extent that such illness is considered industrial, and therefore entitles the employee to workers’ compensation benefits.

A.  Standards for Application of Workers’ Compensation Rebuttable Presumption for an Employee’s COVID-19 Illness

Employees injured in the course and scope of employment are generally entitled to receive workers’ compensation benefits for their injuries.  Existing law establishes a series of specific injuries and illnesses for certain public safety employees that are presumed to be industrial in nature and create a rebuttable presumption that will qualify them for workers’ compensation benefits immediately, unless an employer can provide sufficient information to indicate that the injury or illness is non-industrial.

Recognizing the unique challenges posed by the COVID-19 global pandemic, SB 1159 now creates a similar presumption for illness or death resulting from COVID-19 in the following three circumstances:

  1. The bill codifies Executive Order N-62-20, issued by Governor Newsom on May 6, 2020, which expanded the workers’ compensation rebuttable presumption to ANY employee who reported to their place of employment between March 19 and July 5, 2020, and who tested positive for or was diagnosed with COVID-19 within the following 14 days during that time period.
  2. This rebuttable presumption is then extended beyond July 6, 2020, for firefighters, peace officers, fire and rescue coordinators, and certain kinds of health care and health facility workers, including in-home supportive services providers that provide services outside their own home.  For health facility employees other than those who provide direct patient care, and other than custodial employees in contact with COVID-19 patients, the presumption does not apply if the employer can show the employee did not have contact with a COVID-19 positive patient within the 14-day period.
  3. For all other employees, the rebuttable presumption is only applied if the employee works for an employer with five or more employees and the employee tests positive for COVID-19 within 14 days after reporting to their place of employment during a COVID-19 “outbreak” at the employee’s specific work place. For purposes of this presumption, a COVID-19 “outbreak” exists if within 14 calendar days one of the following occurs at a “specific place of employment” (which excludes the employee’s home):
  • If the employer has 100 employees or fewer at a specific place of employment, 4 employees test positive for COVID-19;
  • If the employer has more than 100 employees at a specific place of employment, 4% of the number of employees who reported to the specific place of employment, test positive for COVID; or
  • A specific place of employment is ordered to close by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to a risk of infection with COVID-19

For purposes of administering this “outbreak” presumption, SB 1159 requires employers to report to their workers’ compensation claims administrator in writing within three business days when they know or reasonably should know that an employee has tested positive for COVID-19, along with other relevant information.

The Workers’ Compensation Appeals Board (“WCAB”) is bound by these presumptions unless presented with controverted evidence to dispute the presumption.  Workers’ compensation awarded for covered COVID-19 related illness or death includes full hospital, surgical, medical treatment, disability indemnity, and death benefits. The bill also makes a workers’ compensation claim relating to a COVID-19 illness presumptively compensable, as described above, after only 30 days, rather than the standard 90-day time period for all other types of workers’ compensation claims.

B.  Application of Other COVID-19 Paid Benefits and Duration of New Law

However, SB 1159 requires an employee to exhaust any COVID-19 related supplemental paid sick leave benefits (e.g., FFCRA’s Emergency Paid Sick Leave or California’s supplemental paid sick leave under AB 1867) and meet certain certification requirements before receiving temporary disability benefits or an industrial injury leave of absence.

In addition, the effective timeframe for workers’ compensation benefits under SB 1159 based on illness or death due to COVID-19 is limited, as the law will remain in effect only until January 1, 2023, after which the law will sunset and be repealed unless extended further by the Legislature.

SB 1159 also requires the Commission on Health and Safety and Workers’ Compensation to conduct a study of the impact of COVID-19 on the workers’ compensation system, to deliver a preliminary report to the Legislature and Governor by December 31, 2021, and to deliver a final report to the legislature by April 30, 2022.

C.  Impact of SB 1159 on Employers

As SB 1159 is now law, employers need to be vigilant and prepared to respond to any indication that an employee has contracted COVID-19 and should coordinate with their workers’ compensation insurance carriers and claims adjusters to establish best practices for reporting and responding to potential workers’ compensation claims based on COVID-19.

(SB 1159 adds Sections 77.8, 3212.86, 3212.87, and 3212.88 to the Labor Code.)

AB 685

In response to the COVID-19 pandemic and its impact on maintaining a safe workplace, AB 685 amends the Labor Code in several areas to require employers to adhere to stricter occupational health and safety rules and empowers Cal/OSHA with expanded enforcement powers to address such standards as follows – effective January 1, 2021:

A.  New COVID-19 Employer Notice and Reporting Requirements

AB 685 requires employers to comply with certain reporting requirements and provide the following four notices related to potential COVID-19 exposures in the workplace within one business day of being informed of the potential exposure:

  1. Potential COVID-19 Exposure Notice to Employees

If an employer or the employer’s representative receives a notice of a potential exposure to COVID-19 in the workplace by a “qualifying individual”, the employer must provide a written notice to all employees, and to the employers of subcontracted employees, who were present at the same worksite within the infectious period (as defined by the State Department of Public Health), stating that they may have been exposed to COVID-19.

For purposes of this requirement, a “qualifying individual” means a person who can establish any of the following requirements:

  • A laboratory-confirmed case of COVID-19;
  • A positive COVID-19 diagnosis from a licensed health care provider;
  • A COVID-19 related isolation order issued by a public health official; or
  • Death due to COVID-19 as determined by the County public health department.

The notice must be sent in a manner the employer normally uses to communicate employment-related information.  This can include personal service, email, or text message so long as it can be reasonably anticipated that employees will receive the notice within the one business day requirement.  The notice must be in both English and the language understood by the majority of employees.

2.  Potential COVID-19 Exposure Notice to Exclusive Representative of Represented Employees

If the affected employees who are required to receive this COVID-19 exposure notice include represented employees, the employer must send the same notice to the exclusive representative of the affected bargaining unit.

3.  Notice of COVID-19 Related Benefits and Employee Protections

An employer must also provide all affected employees and the exclusive representative, if any, with a notice of information regarding any COVID-19-related benefits or leave rights under federal, state, and local laws, or pursuant to employer policy, as well as the employee’s protections against retaliation and discrimination.

4.  Notice of Safety Plan in Reponse to Potential COVID-19 Exposure

Finally, the employer must notify all employees, the employers of subcontracted employees, and any exclusive representative, of the employer’s plans for implementing and completing a disinfection and safety plan pursuant to guidelines issued by the federal Centers for Disease Control.

Failure to comply with these requirements may subject the employer to a civil penalty. AB 685 also prohibits employers from requiring employees to disclose medical information except as required by law, and prohibits employers from retaliating against an employee for disclosing a qualifying case of COVID-19.  Employers are also required to maintain records of these four notices for at least three years.

Where employers are notified of a number of cases that meet the definition of a COVID-19 “outbreak” as defined by the California Department of Public Health (“CDPH”), the employer must also notify the applicable local public health agency within 48 hours of the names, number, occupation, and worksite of any “qualifying individuals” related to the “outbreak”.

An “outbreak” is currently defined by CDPH as “three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.” (See CDPH’s “COVID-19 Employer Playbook – Supporting a Safer Environment for Workers and Customers – available online at https://files.covid19.ca.gov/pdf/employer-playbook-for-safe-reopening–en.pdf)

CDPH is also required to make workplace statistics received from local health departments under this provision – other than personally identifiable employee information – available on its website, such that members of the public can track the number of cases and outbreaks by industry.

These new COVID-19 notice and reporting requirements apply to all private and public employees, with two exceptions:

  • Health facilities, as defined in Section 1250 of the Health and Safety Code, are exempt from reporting an “outbreak” within 48 hours as described above;
  • The notice requirements do not apply to exposures by employees whose regular duties include COVID-19 testing or screening or who provide patient care to individuals who are known or suspected to have COVID-19, unless the “qualifying individual” is also an employee at the same worksite.

B.  Cal/OSHA Will Be Authorized to Shut Down A Workplace, Operation, or Process that Creates an Imminent Hazard Due To COVID-19 Exposure Risk.

Under current law, whenever Cal/OSHA finds that a place of employment or specific equipment in the workplace creates an imminent hazard to employees, Cal/OSHA has the authority to prohibit entry into the affected part of the workplace or to prohibit the use of the dangerous equipment in the workplace.

AB 685 expands and clarifies Cal/OSHA’s authority within the context of COVID-19 related issues in the workplace. Under AB 685, if Cal/OSHA finds that a workplace or operation/process within a workplace exposes employees to a risk of COVID-19 infection and thereby creates an imminent hazard to employees, Cal/OSHA now has authority to prohibit entry to the workplace or to the performance of such operation/process.  If Cal/OSHA uses its authority to apply such a workplace restriction, it must then provide the employer with notice of the action and post that notice in a conspicuous place at the worksite.  Any restrictions imposed by Cal/OSHA must be limited to the immediate area where the imminent hazard exists and must not prohibit any entry into or operation/process within a workplace that does not cause a risk of infection. In addition, Cal/OSHA may not impose restrictions that would materially interrupt “critical government functions” essential to ensuring public health and safety functions, or the delivery of electrical power or water.

This expanded authority sunsets on January 1, 2023, and will be repealed automatically on that date unless further extended by the Legislature.

C.  Amends Cal/OSHA Procedures for Serious Violation Citations Relating to COVID-19

Currently, before Cal/OSHA can issue a citation to an employer alleging a “serious violation” of occupational safety and health statutes or regulations, it must make a reasonable attempt to determine and consider whether certain mitigating factors were taken by an employer to rebut the potential citation.  Cal/OSHA satisfies this requirement by sending an employer a description of the alleged violation at least 15 days before issuing a citation, and provides the employer an opportunity to respond.  Even if an employer does not provide information in response to Cal/OSHA’s inquiries, an employer is still not precluded from presenting such information at a later hearing to contest the citation.

AB 685 modifies this procedure until January 1, 2023 as applied to serious violation citations Cal/OSHA issues related to COVID-19.  For such COVID-19 serious violation citations, Cal/OSHA is not obligated to provide an alleged violation at least 15 days prior to issuing the citation to allow an employer the opportunity to respond and can instead issue the citation immediately.  The employer would still be able to contest the citation through the existing Cal/OSHA appeal procedures.

D.  Impact of AB 685 on Employers

Because AB 685 is not effective until January 1, 2021, employers have some time to prepare for its new notice and reporting requirements.  Employers should review and revise their existing procedures related to notification of COVID-19 exposures in the workplace in order to ensure they are ready to comply with the new notice and reporting requirements imposed by AB 685 once it becomes effective.

(AB 685 amends Sections 6325 and 6432 of and adds Sections 6325 and 6409.6 to the Labor Code.)

If you have questions about SB 1159 and AB 685 and how they may affect your agency’s operations, LCW attorneys are available to answer your questions.

AB 5, which went into effect January 1, 2020, codified in the Labor Code the “ABC” test for determining independent contractor status that the California Supreme Court adopted in its 2018 decision in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903. Our bulletin regarding the details of AB 5 can be found here.

On Friday, September 4, 2020, Governor Newsom signed Assembly Bill 2257 (AB 2257) into law. AB 2257 served as clean-up legislation to AB 5, and amends certain exceptions to the “ABC” test set forth in AB 5. AB 2257 was an urgency bill so it becomes effective immediately.

Importantly, AB 2257 clarifies that the “business service provider” exemption to the stricter ABC test covers contracting services provided to a “public agency.” Prior to AB 2257, because the statute did not specifically state “public agency,” there was some question regarding whether the legislature intended to apply AB 5 to public agencies. This specific mentioning of public agencies in the “business service provider” exemption appears to demonstrate that the legislature intended for AB 5 to apply to public agencies.

AB 2257 also made the following changes to some of the conditions for eligibility for the “business service provider” exemption:

  • One criterion for eligibility for the exemption is that the business service provider provide services directly to the contracting business rather than to customers. AB 2257 adds that this restriction does not apply if the business service provider’s employees are solely performing services under the name of the business service provider and the business service provider regularly contracts with other businesses.
  • AB 2257 specifies that a contract with a business service provider must include the payment amount, rate of pay, and the due date for the payment.
  • AB 2257 allows for a residence to qualify as the separate business location of the business service provider.
  • Previously, AB 5 required that the business service provider “actually” contract with other businesses and provide similar services. AB 2257 changed this requirement to “can” contract with other businesses.
  • AB 2257 clarifies that the business service provider may use proprietary materials of the contracting agency that are necessary to perform the services of the contract.

AB 2257 also created additional exemptions for various professions and occupations. For example, it exempts individuals who provide underwriting inspections and other services for the insurance industry, a manufactured housing salesperson, people engaged by an international exchange visitor program, consulting services, animal services, competition judges, licensed landscape architects, specialized performers teaching master classes, registered professional foresters, real estate appraisers and home inspectors, and feedback aggregators.

LCW can assist your agency with questions about AB 2257 and AB 5, and its potential effects on your agency.

While skies all over California were turned strange colors by fire and smoke on September 11, 2020, Governor Gavin Newsom signed AB 2147 into law. Passed by a 51-12 majority in the Assembly and a unanimous 30-0 vote in the Senate, this law creates new Penal Code section 1203.4b, designed to make it easier for inmates trained in firefighting in the Conservation Camp Program or on a county hand crew to gain employment as professional firefighters after release.

In partnership with the California Department of Forestry and Fire Protection, also known as CAL-FIRE, the Department of Corrections and Rehabilitations operates 44 minimum security Conservation Camps, where inmates who volunteer for the program receive the same entry-level training as CAL-FIRE’s seasonal firefighters and ongoing training during their time in the program.  Inmate firefighters in the Conservation Camp program have assisted in fighting the Pocket, Tubbs, Atlas, Camp, and Kincade fires.

Historically, despite the state’s investment in training these individuals in firefighting skills, formerly incarcerated persons who participated in the Conservation Camp program have struggled to find employment as municipal firefighters.  This stems, at least in part, from the fact that their conviction history prevents them from obtaining EMT certifications.

Penal Code section 1203.4b, which will take effect January 1, 2021, will allow certain persons with criminal convictions who have been released from custody to file a petition for relief in court.  If the Secretary of the Department of Corrections and Rehabilitations or the appropriate county authority certifies the defendant has successfully completed the firefighting program, the court may, in its discretion and in the interests of justice, issue an order expunging the conviction, with certain restrictions.

Defendants who were convicted of murder, kidnapping, rape, any felony punishable by death or life imprisonment, any sex offense requiring registration as a sex offender, escape from a secure perimeter in the last 10 years, or (wisely) arson are not eligible for relief under AB 2147.  Likewise, persons convicted of these crimes are not eligible to participate in the Conservation Camp Program.

A defendant who receives an order under this section will not be required to disclose the expunged conviction on an application for licensure by any state or local agency except if applying for a teaching credential, a position as a peace officer, a public office, or a contract with the California State Lottery Commission.  Therefore, he or she would not need to disclose his or her conviction to become an EMT.

An expungement order will not allow a former inmate who would otherwise be prohibited from holding public office to do so.  Likewise, a former inmate’s being granted relief under the new law does not permit them to own, possess, or have in their custody or control any firearm.

 

 

 

On September 11, 2020, the Department of Labor (“DOL”) promulgated three revised regulations concerning the Families First Coronavirus Response Act (“FFCRA”) (29 C.F.R. 826.) The revised regulations will take effect on September 16, 2020, upon publication of the revised rule in the Federal Register.

The DOL revised these regulations in response to a challenge by the State of New York and a ruling by the District Court the Southern District of New York in that matter (See (New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020)).

Shortly after the Department codified the temporary rule governing the FFCRA on April 1, the State of New York challenged DOL’s interpretation and regulatory authority on several key provisions of the FFCRA, including: (1) the requirement that Emergency Paid Sick Leave (“EPSL”) and Expanded Family and Medical Leave (“EFML”) are available only if an employee has work from which to take leave (i.e., “work availability requirement”) (29 C.F.R. 826.20); (2) the requirement that an employee may take FFCRA leave intermittently only with employer approval (29 C.F.R. 826.50); (3) the definition of an employee who is a “health care provider,” whom an employer may exclude from receipt of FFCRA leave (29 C.F.R. 826.30(c)(1)); and (4) the statement that employees who take FFCRA leave must provide their employers with certain documentation before taking leave (29 C.F.R. 826.100).

While the District Court ruled in favor of the State on each of the four subjects described above, the Department revised regulations in Sections 826.30, 826.90, and 826.100 to address the District Court’s concern regarding the third and fourth issues described above. The Department rejected the District Court’s holding concerning the invalidity of other regulations, effectively reaffirming the Department’s initial interpretation and positions concerning those matters as codified in the April 1 temporary rule and paving the way for an appeal by the State.

While we will discuss each of the three revised regulations as well as how public employers may need to change their practices in order to comply with such regulations, we begin by briefly reviewing the regulations that remain unchanged.

Regulations Regarding “Work Availability” and Employer Approval of Intermittent Leave Remain Unchanged

The DOL rejected the District Court’s holding invalidating the “work availability requirement” in order for an employee to qualify for FFCRA leave and the requirement that an employee to receive their employer’s agreement or approval before using FFCRA leave intermittently. In its decision, the District Court held that the Department exceeded its rulemaking authority with the issuance of each of these regulations.

By declining to revise these regulations in order to address the Court’s concerns, the Department effectively reaffirmed its initial instruction concerning these matters. As a result, on these subjects, the temporary rule remains effective and unchanged.

Therefore, public employers should continue to comply with the April 1 temporary rule and the Department’s informal guidance on these subjects. Although an appeal could be filed in the New York case, it will likely not be resolved before the FFCRA expires, unless the law is extended.[1]

Regulations Revised by the Department of Labor

As provided above, the Department revised three regulations: (1) Section 826.30; (2) Section 826.90; and (3) Section 826.100. Public employers should take note of how the revised regulations may affect their compliance with FFCRA and take remedial action as necessary in order to maintain compliance the law.

“Definition of Health Care Provider” under Section 826.30

Sections 3105 and 5102(a) of the FFCRA provides discretionary authority to employers to exclude from the FFCRA’s leave entitlement employees who are “health care providers”. In the April 1 temporary rule, the Department promulgated a definition of “health care provider” that the District Court held to be overly broad because it depended on the identity of the employer and not on any determination of the employees’ skills, role, duties, or capabilities.

As a result of the Court’s ruling, the DOL adopted a revised and more limited definition of “health care provider” that includes employees who are heath care providers under 29 C.F.R. 825.102 and 825.125, other employees who provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care. (See 29 C.F.R. 826.30(c)(1).)

First, DOL revised 29 C.F.R. 826.30(c)(1)(i)(A) to define “health care provider” to include employees who fall within the definition of health care provider under 29 C.F.R. 825.102 and 825.125[2] (i.e., the Family and Medical Leave Act (“FMLA”) regulations defining “health care provider”), thereby including physicians and others who make medical diagnoses within this term. Second, DOL revised 29 C.F.R. 826.30(c)(1)(i)(B) to identify additional employees who are “capable of providing health care services”, including “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”

For public agencies that exempted “health care providers” from the receipt of FFCRA leave, we recommend reviewing the specific skills, role, duties, or capabilities of the employees who were exempted. If the employer, in policy or practice, exempted any employees based on the identity of the employer as a health care provider and not on a determination concerning the skills, role, duties, or capabilities of the specific employee, we recommend revising the policy and/or practice in order to only exempt those employees who are capable of performing health care services. In addition to changing such leave policies and practices prospectively, the employer should reimburse such employees for leave taken that otherwise would have been covered by the FFCRA, but for the incorrect application of the exemption entitling the employee to such leave.

Notice and Documentation Required for Expanded Family and Medical Leave under Sections 826.90 and 826.100

We discuss the remaining two revisions to the temporary rule together because of the provisions’ complementary nature.

Revisions to Notice Requirements under Section 826.90

29 C.F.R. 826.90 sets forth the circumstances under which an employee who takes EPSL or EFML must provide notice to their employer. Subsection (b) of that regulation governs the timing and delivery of notice by employees, and, according to the April 1 temporary rule, provided:

Notice may not be required in advance, and may only be required after the first workday (or

portion thereof) for which an Employee takes [Emergency] Paid Sick Leave or Expanded Family and Medical Leave.

While this statement is accurate with respect to EPSL, the FFCRA provides a different standard for the provision of notice for EFML. Section 110 (c) of the Family and Medical Leave Act (“FMLA”) (29 U.S.C. 2620(c)), as amended by FFCRA section 3102, expressly provides that “where the necessity for [EFML] is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.” Therefore, for EFML, advance notice may be required if and when the employee requesting such leave foresees needing the leave.

The DOL corrected this error by revising 29 C.F.R 826.90(b) to provide that advanced notice of EFML is required as soon as practicable. Therefore, if and when the need for EFML is foreseeable, the employee requesting such leave must now provide notice of their request for such leave before taking the leave. If the need for EFML is not foreseeable, the employee may take such leave without providing their employer prior notice, but must still provide notice to the employer as soon thereafter as is practicable.

Revisions to Documentation Requirements under Section 826.100

29 C.F.R. 826.100 lists documentation that an employee must provide to their employer regarding the employee’s need to take FFCRA leave, and states that such documentation must be provided “prior to” taking paid sick leave or expanded family and medical leave.

The District Court held that the requirement that documentation be given “prior to” taking leave “is inconsistent with the statute’s unambiguous notice provision,” which allows an employer to require notice of an employee’s reason for taking leave only “after the first workday (or portion thereof)” for EPSL, or “as is practicable” for EFML.

The DOL corrected this inconsistency by revising 29 C.F.R. 826.100 (a) to clarify that the documentation need not be provided “prior to” taking EPSL or EFML, but that such documentation must be provided as soon as practicable, which in most cases will be when the employee provides notice of such leave as provided under 29 C.F.R. 826.90. In other words, an employer may require that an employee who is using any leave under FFCRA – either EPSL or EFML – provide the necessary documentation supporting such leave as soon as practicable. This documentation includes: (1) the employee’s name; (2) the dates for which leave is requested; (3) the qualifying reason for leave; and (4) an oral or written statement that the employee is unable to work (See 29 C.F.R. 826.100 (a), as well as the specific information required for each type of FFCRA leave (See 29 C.F.R. 826.100 (b)-(f)).

If you have questions about these changes in the DOL rules and how they may affect your agency’s operations, LCW attorneys are available to answer your questions.


[1] Many public agencies have chosen to require agency approval to use any FFCRA intermittently or have chosen not to permit it.  As the DOL has chosen to not modify that regulation, agencies may continue to implement their FFCRA policies regarding use of leave intermittently as they have been doing so since the law was enacted.

[2] 29 C.F.R. 825.102 and 825.125 define “health care provider” to mean “[a] doctor of medicine or osteopathy who is authorized to practice medicine or surgery” or “[a]ny other person determined by the Secretary to be capable of providing health care services.”

If you consume social media, be it Facebook, Instagram, Twitter, or the app of the moment TikTok, you have certainly come across “the Karen meme.”  By and large, “the Karen meme” is an image depicting a middle-aged Caucasian woman, almost always sporting a spiky, short blonde haircut.  “Karen” argues with and is condescending to service industry workers, and demands to speak to the manager on account of small, meaningless inconveniences, such as an iced skinny vanilla latte with one too many ice cubes.  While memes have become popular on the internet, “the Karen meme” has the potential to create legal claims for employers depending on how it is used at work.

As “the Karen meme” went viral, some have argued that “the Karen meme” itself is sexist, racist, or ageist, any combination of the three, or all three.  Others assert that it is not.  Who is right depends largely on whom you ask, and how you look at the issue.

From an academic and satirical point of view, much like “OK, Boomer” does not necessarily mean “OK, old person,” “Karen” does not necessarily mean “middle-aged Caucasian woman.”  Rather, “Karen” depicts a particular temperament instead of a particular demographic.  As the meme is used, any person, regardless of generation, race, and gender, can be “Karen” so long as they are perceived to be entitled and disrespectful.  Stated otherwise, like the “Boomer” of “OK, Boomer” fame, the “Karen” of the newest meme craze is a personality, not a person.

But from a practical standpoint, because “Karen” is almost always portrayed as a middle-aged Caucasian woman, the fact that the meme is meant to refer to a personality, not a person, is largely irrelevant.  That is a factor in why its use can create legal claims for employers.

Unlike “Karen,” “OK, Boomer” did not use a particular person – such as an elderly individual of a certain race and gender – to embody its titular character.  Indeed, the meme often used a movie or even an animated cartoon character sarcastically or stoically responding “OK, Boomer” to a statement made by a nameless, faceless “Boomer” with whom the recipient of the comment disagreed.

By contrast, “the Karen meme” is always portrayed as an individual defined by three characteristics – her age, her race, and her gender.  All three characteristics are protected under state and federal law under the Fair Employment and Housing Act (“FEHA”), Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act (for age over 40).

Moreover, “the Karen meme” could pose significant issues pertaining to retaliation.  Specifically, a hallmark of the titular “Karen” character is her tendency to ask to “speak to the manager” to air her frivolous complaints.  Consequently, if “the Karen meme” finds its way into the workplace, an employee who voiced a complaint to superiors or Human Resources could perceive the meme as attacking his or her credibility and dismissing the seriousness of their concern.  If that employee is, for example, subsequently not promoted, the use of “the Karen meme” in the office would certainly play a part in his or her subsequent retaliation action. From a practical standpoint then, if “the Karen meme” is shared between employees during working hours, it may well expose employers to lawsuits alleging discrimination and harassment in state or federal court.  To minimize exposure, employers should take steps to ensure that its employees are familiar with any applicable social media policy, as well as applicable laws aimed at preventing discrimination and harassment based on protected characteristics.  To that end, clear communication of the employer’s policies, and training provided to employees, is key.

As students return to school this fall, parents find themselves learning new vocabulary terms, such as “remote learning,” “distance learning,” “synchronous or asynchronous instruction,” and “learning pods.”  Parents are also learning how to juggle their own work, either from home or onsite, and their children’s instruction.  Employers have probably been receiving requests from employees to use leave under the Families First Coronavirus Response Act (FFCRA) to care for their children whose school or place of care is closed (or whose child care provider is unavailable) due to COVID-19-related reasons.  This article will specifically address some of the issues to address when administering leave for child care purposes.

To see LCW’s full coverage on COVID-19, please visit this website.

When does an employee qualify for leave for child care purposes?

The key fact in determining whether an employee can use leave under the FFCRA is whether the child’s school or child care provider is “unavailable” for COVID-19 related reasons.  On August 27, 2020, the Department of Labor issued three new questions and answers on their website addressing this issue.  The DOL Questions and Answers #98 to #100 are found here.

The new questions and answers have provided the following guidelines:

  • If a student is only permitted to attend school on specific days, the employee qualifies for leave for those days the student is required to stay home and the employee has to care for the child.
  • If in-person instruction is available, but the parent chooses to participate in remote learning (e.g., for fear of transmission of COVID), the employee does not qualify for leave because the school is not “closed” to that student.
  • If the school decides that all students will begin with remote learning, but has plans to open the school later, the employee qualifies for leave only during the time when the school is offering remote learning.

As you can see, employers will need to conduct an individualized assessment of whether an employee can take leave for child care purposes.  This will be different for each employee depending on the county, school district, school or child care provider, and student.

How much leave is available to an employee for child care purposes?

The employee is entitled to two weeks of leave under the Emergency Paid Sick Leave Act (“EPSLA”) and twelve weeks of leave under the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) for child care purposes.  The employer can choose to have these leaves run concurrently, which means the two weeks of EPSLA can run at the same time as the first two weeks of EFMLEA.  If, however, an employee used two weeks EPSSLA for a reason other than child care, e.g., pursuant to a quarantine order, then they will still have twelve weeks of leave available to them under EFMLEA.

The amount of leave is subject to the following limitations:

  • For employees who may have used some or all of this leave earlier this year (e.g., the end of the last school year), the leave available would be reduced by the amount of leave used. For example, if an employee exhausted their leave in the spring, they would have no further leave available for the fall.
  • EFMLEA is also limited by any weeks that may have been used under traditional Family and Medical Leave Act (“FMLA”). For example, if an employee used four weeks of FMLA for their own serious health condition earlier this year, they would only have eight weeks of EFMLEA available to them.
  • Leave under the FFCRA expires on December 31, 2020. So, even if an employee starts leave before the end of the calendar year, leave under the FFCRA is only available to employees through December 31, 2020.

Is the leave under the FFCRA paid or unpaid?

Leave under EPSLA for child care purposes is paid at 2/3 the employee’s average regular rate, up to $200 per day or $2,000 in the aggregate.

The first two weeks of EFMLEA is unpaid.  The next ten weeks of EFMLEA is paid at 2/3 the employee’s average regular rate, up to $200 per day or $10,000 in the aggregate.

Please note that the “average regular rate” under the FFCRA must be calculated very carefully.  You can view LCW’s webinar on the topic here.

The employee may elect to or be required to use their paid leaves, such as vacation or personal leave, according to the employer’s existing policies.

Can the employee use leave under the FFCRA intermittently?

The DOL published a regulation, 29 C.F.R. § 826.50, which states, in part:

Subject to the conditions and applicable limits, an Employee may 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.

The DOL Question and Answer #22 reinforces that the employer must agree to provide intermittent leave for child care purposes.  However, in the same response, the DOL states: “The Department encourages employers and employees to collaborate to achieve flexibility.  Therefore, if employers and employees agree to intermittent leave on a day-by-day basis, the Department supports such voluntary arrangements.”

Further, we also note that a court in the Southern District of New York has vacated the “blanket requirement” of the employer and employee agreeing to intermittent leave.  The court held that while the employer could deny the leave to prevent the transmission and spread of COVID, the DOL did not justify the “blanket requirement of employer consent” when issuing the regulation.  Please note that this is a District Court case from New York, and is not binding on California employers.

* * *

Employers are encouraged to contact legal counsel when faced with these types of leave requests from employees.  As mentioned above, each request will require an individualized assessment on whether an employee qualifies for the leave and how much leave is available to them.

For further details on the administration of these laws, please review our previous articles here and here.

Many of us have been working from home longer than we ever could have anticipated when shelter-in-place orders were rolled out in March 2020.  As we’ve tried to settle into these going-on-five months of remote work, there is always room for improvement as to our work settings.  As we ease into accepting this as “normal” instead of the “new normal,” it’s important to keep in mind things that can make your remote workday as seamless and stress-free as possible in these unprecedented times.

Make Yourself Comfortable

There are lots of articles out there about how to make your Work-From-Home life better, and the answer is almost always the same: set a routine and stick to it.  Typical Do: wake up early and work out before you sit down at your designated workspace for the day.  Typical Don’t: just roll out of bed and show up to a meeting 2 minutes before the start time in your pajamas.   While this is great advice that should be followed if possible, it’s much easier said than done.

The best and easiest advice to implement: make yourself comfortable. Cut yourself some slack. Wear soft pants while you work if that makes you comfortable.  However, it is important to remember that depending on your job, dressing the part can actually make you feel more comfortable while you are working.  If you know you will be in a meeting with your video on, put on a button-up shirt instead of a t-shirt.  Dressing up can improve your mood and confidence at work.  Changing up your clothes can signal to your brain that it’s time to buckle down and get things done.  An easy hack: keep your most professional looking sweater, cardigan, or blazer on your home office chair and for easy access to put on in the event of unexpected video calls.  There is nothing more comforting than feeling confident and prepared at work.

Change Your Mindset About Video Conferencing

If your Zoom/virtual meeting would have been held in person prior to the pandemic, you should have your video camera on for the meeting.  A storied LCW partner once imparted these wise words of wisdom: you wouldn’t show up to an in-person meeting with a bag over your head, would you? It’s easy to show up with your profile picture or name as your representation in a meeting, but it’s important to change your mindset about how you decide to show up.  You are more likely to make connections and pay closer attention if you know the other participants can see that you are paying attention.  Plus, once you have a go-to sweater or blazer ready at your workspace, you will be ready for any video conference at the drop of a hat.

If you are doing a lot of video conferencing, try moving your designated workspace closer to a window or other natural light. Especially when some of us might not be going outside at all, being as close as possible to the outdoors and breathing fresh air can greatly help boost productivity (if you are fortunate enough to live far away from the California fires).  Make sure the light is in front of you, as sitting with your light source behind you will backlight you and likely will not be as flattering.

Stay Connected During Remote Work

Instead of the now-routine sing-song greeting of “how are you” and the response of “hanging in there,” try out some new topics for small talk.  Let’s face it, we are all hanging in there and we know it.  Instead of merely asking how someone is, try asking my favorite small talk question: “what are you excited about lately?”  Although many of us may feel that we don’t currently have too much to look forward to with so many of our summer events cancelled or closed, this question forces us to think about what we have going on now that we can be excited about.  Maybe it’s a hike that you have planned this weekend, or the take-out order that you’re looking forward to for lunch, or, like me, you are excited about binge-watching another season of Survivor.

It’s also important to still attend virtual events and connect with your co-workers.  As we get more comfortable having socially distanced walks, picnics, or even indulging in outdoor dining, it’s easy to let Zoom-fatigue stop you from attending virtual lunches or happy hours.  However, it’s also easy to let yourself go a full 24 hours (or more) without speaking to anyone at all! If your office doesn’t plan virtual events, take it upon yourself to reach out to talk to your colleagues for a moment about things other than work.  Ask them what they are excited about!  Our feelings of uncertainty about the future of our work lives can be eased by connecting with others.

For those of you reading this with kids at home who are starting off another school year in distance learning, my colleague Alison Kalinski wrote a blog post from earlier in the pandemic with more helpful tips about her admirable journey in finding balance between remote work and supervising remote learning.  You can find that post here.

So, what are you excited about? 

 As California battles close to 600 wildfires burning more than one million acres across the state, many areas are experiencing unhealthy and even very unhealthy air quality. During these conditions, employers must comply with the California Division of Occupational Safety and Health (CalOSHA) worker safety requirements to protect outdoor workers from wildfire smoke effects.

Section 5141.1 of Title 8 of the California Code of Regulations was adopted as an emergency regulation in July 2019, in response to devastating wildfires throughout California. Since that time, the emergency regulation has been extended twice by the Occupational Safety and Standards Board, and now expires on January 20, 2021.

The regulation applies to workplaces where the current Air Quality Index (AQI) for particulate matter (PM) 2.5 is 151 or greater. PM2.5 measures tiny particles in the air that measure an aerodynamic diameter of 2.5 micrometers or smaller, which pose significant health risk to a person’s lungs and heart.  A PM2.5 of 151 or greater is classified as unhealthy. Many areas in Northern California reached this level over this last weekend due to wildfires burning throughout the state.

To find the current and forecasted AQI for PM2.5, employers and employees can go to www.AirNow.gov and enter the zip code of the location where employees will be working. The current AQI is also available from the U.S. Forest Service at https://tools.airfire.org/ or your local air district, which can be located at www.arb.ca.gov/capcoa/dismap.htm.

While many employers are subject to the emergency regulation, certain workplaces and operations are exempt from its requirements, including:

  1. Enclosed buildings or structures in which the air is filtered by a mechanical ventilation system and the employer ensures that windows, doors, bays, and other openings are kept closed to minimize contamination by outdoor or unfiltered air;
  2. Enclosed vehicles in which the air is filtered by a cabin air filter and for which the employer ensures that windows, doors, and other openings are kept closed to minimize contamination by outdoor or unfiltered air;
  3. Workplaces where employees are only exposed to a current AQI for PM2.5 of 151 or greater for a short time of one hour or less during a shift; and
  4. Firefighters engaged in wildland firefighting.

According to CalOSHA regulations, when the AQI reaches unhealthy levels (PM2.5 of 151 or greater), employers that are not exempt from the regulations must take the following actions to protect outdoor workers:

  1. Monitor Levels of Smoke at Worksites: Employers must check AQI using the above methods before each shift and periodically thereafter, as needed to protect employee health. Employers may also choose to conduct their own direct measurements at the worksite using methods described in Appendix A of the regulation.
  2. Communicate with Employees: Employers are required to establish and implement a system for communicating wildfire smoke hazards to employees in a form that is readily understandable by all employees. The system must include effective procedures for informing employees of the current AQI for PM2.5, communicating protective measures available to employees to reduce exposure, and encouraging employees to inform the employer of worsening air quality as well as any adverse symptoms they may experience, such as asthma, difficulty breathing, and chest pain. Employers must encourage employees to inform the employer of wildfire smoke hazards at the worksite without fear of reprisal.

Appendix B of the regulation provides a sample policy listing mandatory information to be provided to employees.

  1. Train Employees: Employers must train employees on the health effects of wildfire smoke, how to check AQI levels, the employer’s communication system and methods of protection, how to access and use respirators provided by the employer, and the right to obtain medical treatment without fear of reprisal.
  2. Control Harmful Exposure: Employers must provide enclosed areas for employees to work, such as buildings, structures, or vehicles, where the air is filtered to a PM 2.5 of less than 151. Where this is not feasible, an employer must implement administrative controls such as relocating work to an area with an AQI of less than 151, changing work schedules, reducing work intensity, or providing additional rest periods.
  3. Provide Respiratory Protective Equipment: When the AQI is more than 151 but does not exceed 500, employers must provide employees with respirators that are approved by the National Institute for Occupational Safety and Health, such as N95 face pieces, for voluntary use, and must encourage employees to use them.

Where the current AQI for PM2.5 exceeds 500, respirator use is required.

  1. Update IIPP’s: Employers are required to supplement or integrate their Illness and Injury Prevention Plans (IIPP) with the requisite wildfire smoke protection information as detailed in the regulation.

Employers are advised to review the regulation at Section 5141.1 of Title 8 of the California Code of Regulations, and to take the above actions as soon as possible to comply with CalOSHA requirements.

Election day, November 3, 2020, is only several months off.  Almost all agree the election will be historic, with a high-level of public activity anticipated, whether through donations, rally participation, letter writing, buttons, t-shirts, banners, yard signs, word-of-mouth, or social media.  Protests and even civil disobedience are possible.  Election times present unique issues for California public employers.  The following is a short list of some of these issues, and a discussion of the relevant laws.

Employee Free Speech on Social Media, at Protests and Rallies, and in the Office

What if an agency employee posts public messages on Facebook, Twitter, or other social media platforms favoring one side in the election?  What if the messages use such lurid or harsh terminology or imagery that fellow agency employees or members of the public complain?  Political speech rests at the core of what the First Amendment protects, and Courts are extremely reluctant to allow a government agency to punish or attempt to censor the speech, even if the individual works for the government agency in question.

At the same time, statements by employees on social media that harm or threaten to harm the agency’s operations in a sufficiently severe way can serve as the basis for discipline, notwithstanding constitutional free speech protections.  Examples include statements on social media that give away important and legitimate confidential information of the agency and statements in which the employee wrongly states he or she speaks on the agency’s behalf.  Also, statements by law enforcement officers that show harsh prejudice or bias if made public may cause community members to fear the officer will not protect them, and may make fellow employees sufficiently uncomfortable in the workplace that the officer has effectively disrupted the agency’s operations.  The employee will not be able to claim First Amendment immunity from discipline just because the statements appeared in the course of a political discussion.

The same considerations apply to public employee conduct at protests and rallies that can tend to disrupt an agencies’ operations or sufficiently undermine its mission.  That said, Courts are unlikely to find that mere participation in these activities outside of work will be sufficient to justify discipline of the employee.

Under First Amendment principles, an employee cannot be disciplined for his or her speech (1) on matters of “public concern” (2) that is outside the scope of the employee’s “official duties” and (3) that prevails in a balancing test which weighs, in essence, disruption of a government agency’s operations against the importance of the speech interest at issue.  As Courts have phrased it, the balancing is “whether the [state]’s legitimate administrative interests outweigh the employee’s First Amendment rights.”

Political Activities on Work Premises or During Work Time

Under California law, public agencies can prohibit employees from engaging in “political activities” at the actual workplace, even including political activities during personal time at work.  Government Code section 3207 provides: a local agency “by establishing rules and regulations, may prohibit or otherwise restrict the following: (a) Officers and employees engaging in political activity during working hours” and “(b) Political activities on the premises of the local agency.”

The Government Code provides that public agencies should not place restrictions beyond these, however.  Section 3203 provides: “Except as otherwise provided . . . no restriction shall be placed on the political activities of any officer or employee of a state or local agency.”

Excessive Workplace Discussions About Politics

What if employees do not actively “electioneer” at the office, but do distract themselves with lengthy discussion and debates about the election.  Public employers should and generally do have rules that prohibit using excessive personal time during work hours.  There is nothing wrong with invoking these rules in this circumstance, as long as agencies apply the rules without showing favoritism to one side in a debate or issue.  The First Amendment generally authorizes rules at an agency’s office that may affect speech as long as the rules qualify as “reasonable” and “viewpoint-neutral.”

Political Activities in Uniform

California has statutes that prevent public employees from being in uniform when engaging in political activities.  Government Code section 3206 provides that “[n]o officer or employee of a local agency shall participate in political activities of any kind while in uniform.”  As to public safety officers and firefighters in particular, California law provides that their employers cannot prohibit them from engaging in “political activity,” except when they are on duty or when they are in uniform.  (Gov. Code, §§ 3302(a), 3252(a).)

Coercing or Controlling Employee Political Activities

Next, public agencies should never appear to be trying to control or coerce their employees into voting a certain way or holding particular political views.  Labor Code section 1102 provides: “No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”  Labor Code section 1101 prevents employers from promulgating rules that have the same effect.  It provides: “No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics . . .” or “(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.”  Public employers have strong arguments that these particular statutes do not apply to them, given current case law interpreting the Labor Code.  Nevertheless, the safest course is altogether to avoid any control or coercion of the type prohibited by these statutes.

Employee Use of Any Agency Resources for Partisan Politics

What if an employee attempts to use copy machines, office supplies, office e-mail, office computer systems, or other resources for political activity related to the November election, and actually presents a good reason why this use advances a bone fide purpose of the agency?  They could claim educational benefit or public outreach.  Unsurprisingly, California law prohibits this use.  Merely by way of example, the California Supreme Court in Stanson v. Mott in 1976, held squarely that agency use of resources to support one side in an election (in that case to support passage of a bond measure) violates state law.  Enacted in 2001, Government Code section 54964 writes into law the Stanson holding.  In addition, Government Code section 8314 provides: “It is unlawful for any elected state or local officer, including any state or local appointee, employee, or consultant, to use or permit others to use public resources for a campaign activity . . . . .”

Another example, for California public educational institutions in particular, is Education Code section 7054, which provides: “No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.”  The statute imposes criminal penalties for a violation.

Time Off to Vote

This year will see large-scale efforts to facilitate voting by mail.  But in California counties, voting in-person will still serve as an option (potentially with a several-day span for voting to allow for social distancing).  Under California law, employees have the right to take enough time off from work to vote, if they are unable to do so during off-work hours that the polls are open.  Elections Code section 14000(a) provides: “If a voter does not have sufficient time outside of working hours to vote at a statewide election, the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote.”  Section 14000(b) provides: “No more than two hours of the time taken off for voting shall be without loss of pay.”  (Emphasis added.)

Any additional time needed by the employee can be unpaid unless a collective bargaining agreement or personnel rule provides otherwise.  Further, also under Section 14000(b), time off for voting shall be only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless the employee and employer agree to other arrangements.  Under Section 14000(c), if the employee believes that time off will be needed to vote on election day, he or she must give the employer notice at least two days before the election.

Conclusion

Those who work in and manage government agencies can reflect that the upcoming election represents a moment of significant national decision in the midst of a health crises, an economic crisis, and unprecedented levels of public protest and unrest.  Particularly in these circumstances, questions regarding free speech and political activities of agency employees can present complex legal issues, and in many situations it is prudent to seek advice of counsel.

In a lawsuit involving sixteen states and the District of Columbia, including California, filed against the U.S. Department of Education challenging the new regulations governing how sexual harassment allegations under Title IX of the Education Amendments of 1972 must be adjudicated, U.S. District Judge Carl J. Nichols denied the States’ request for a delay pending the litigation.  The Court’s August 12, 2020 order denying the preliminary injunction can be found here.

Earlier this week, U.S. District Judge John G. Koeltl, also refused to grant a preliminary injunction requested by the school boards for the state of New York and New York City in their lawsuit against the Department. While the states in these lawsuits will continue to litigate their disputes against the Department of Education, the regulations will take effect as scheduled on Friday, August 14, 2020.

The new regulations, released on May 6, 2020, mandate how K-12 and postsecondary education institutions that receive federal financial assistance must define, investigate, and adjudicate claims of sexual harassment under Title IX, the federal law that prohibits discrimination in education based on sex. Read more about the major changes in Title IX implementation here.

If your school, college, or university needs assistance, please contact one of our five offices statewide.  Learn more about LCW’s Title IX compliance training programs and other resources by visiting this page.