Employment Law Update – COVID-19: SUPPLEMENTAL SICK LEAVE AND RULES CONCERNING THE WORKPLACE

by Gerald Sauer and Sonya Goodwin

Supplemental Sick Leave Bill

Governor Newsom signed SB 95 on March 19 which requires an additional 80 hours of paid sick leave, retroactive to January 1, 2021, for employees who work for public or private employers with more than 25 employees.  
Employees are entitled to leave for the following reasons: 

  • The employee is subject to a quarantine or isolation period related to COVID-19;
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The employee is attending an appointment to receive a vaccine for protection against COVID-19;
  • The employee is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework;
  • The employee is experiencing symptoms related to COVID-19 and seeking medical diagnosis;
  • The employee is caring for a family member who is subject to a quarantine or isolation order or has been advised to self-quarantine;
  • The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Guidelines For The Workplace

In light of the reopening of many businesses due to the decrease in coronavirus cases, many employers and employees have questions concerning their rights. The Department of Fair Employment and Housing (“DFEH”) recently issued a bulletin that provides clarity in dealing with COVID-19 in the workplace. The highlights include the following:

  • Employers can ask all employees entering the workplace if they have had COVID-19 symptoms.
  • Employers can measure an employee’s body temperature for the limited purpose of evaluating if the employee may have COVID-19.
  • Employers can require that employees submit to viral testing before allowing the employee to enter the workplace.
  • Employers can require employees to wear personal protective equipment during the COVID-19 pandemic.
  • Employers can send employees home if they present COVID-19 symptoms or if they have tested positive for COVID-19.
  • If an employee tests positive for COVID-19, employers are required to keep the employee’s identity confidential and take any steps necessary to prevent other employees from being infected.
  • Employees are entitled to up to 12 weeks of paid leave under the California Family Rights Act to care for their or their family members serious illness.
  • Employers can require that their employees receive FDA-approved COVID-19 vaccines.

If you have any questions, please do not hesitate to contact Gerald Sauer or Sonya Goodwin. For more details, please review the DFEH bulletin

COVID-19 rewrites the employment discrimination playbook

by Sonya Goodwin

The COVID-19 pandemic has completely rewritten the playbook for U.S. companies that do their best to avoid claims of employment discrimination. Until recently, these employers had just two or three boxes that needed to be checked before they could proceed with disciplining or terminating an employee: Protected class? Protected activity? Retaliation?

Now the “gotcha” list has become like the magic beanstalk that keeps growing, and companies large and small find themselves facing claims for routine business actions that never before would have raised red flags. A record number of lawsuits filed in 2020 allege discrimination or retaliation because of COVID-related issues, and that number is expected to grow significantly in 2021.

Click here to read the full article

Litigation Update – COVID-19’s Impact on Jury Trials and Civil Court Rules

by Gregory Barchie

The recent surge in COVID-19 cases has brought jury trials in California to a standstill. As a result, the number of criminal and civil cases on the courts’ dockets continues to grow exponentially. Since criminal jury trials have priority, civil jury trials will be forced to take a back seat for the foreseeable future. Fortunately, the legal system has adapted to conducting business remotely. Appellate and trial court proceedings, settlement conferences, bench trials and even depositions are being conducted remotely on various platforms such as Zoom, Webex and BlueJeans.  Private arbitrations and mediations are also being conducted virtually. In dealing with the pandemic, California has imposed new, and some would say long overdue, changes to civil court rules and procedures. Many of these changes will stay in place even after the pandemic is over, demonstrating that COVID-19 will have had an indelible effect on civil litigation. Below is a summary of some of those recent changes.

Electronic Service

Senate Bill 1146, which was signed by Governor Newsom and took effect immediately, amended California Code of Civil Procedure § 1010.6 to require electronic service of documents on a represented party in cases initiated after January 1, 2019, so long as the serving party confirms at the outset the electronic service of address for counsel being served. There are a few exceptions to this new rule. For instance, self-represented parties are not required to accept electronic service. If a statute requires a document be served personally or by certified or registered mail, electronic service is not permitted without the express consent of the party being served. These two exceptions effectively prevent electronic service of summons on an evasive defendant.

Remote Appearance at Depositions

Existing law requires that (1) a party-deponent to appear physically at the deposition and be in the presence of the court reporter, and (2) an order be obtained upon a showing of good cause of no prejudice to the parties that a nonparty deponent (and not a party deponent) appear at a deposition by telephone. Senate Bill 1146, however, provides now that a deponent (party or nonparty) or deposing party may elect to have the court reporter attend the deposition by telephone, videoconferencing or other remote electronic means. This effectively excuses the deponent from being physically present at the deposition, even when being sworn in. Senate Bill 1146 also provides that any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent, subject to any protective order issued by the court. These changes provide increased flexibility to take a deposition remotely, which would reduce travel time and provide a convenient means to take a deposition of a witness who does not live in California or even in the United States (of course, you will still be required to properly serve those witnesses).

Extensions of Time

COVID-19 has caused civil trials to be continued for nearly a year so that courts can work through the backlog created by the shutdown. Previously, a trial continuance did not continue all pre-trial deadlines unless expressly ordered by the court. However, Senate Bill 1146 amended California Code of Civil Procedure § 599 to provide temporary relief from this rule. During the current state of emergency related to COVID-19 and 180 days thereafter, a continuance of the trial will automatically continue all pre-trial deadlines, including discovery, the exchange of expert witness information, mandatory settlement conferences, and summary judgment motions, that have not expired prior to March 19, 2020 unless otherwise ordered by a court or agreed to by the parties. The pre-trial deadlines are extended for the same length of time as the continuance of the trial date.  

If you have any questions on any of the above, please do not hesitate to contact Gregory Barchie. 

Changes to court rules and procedures during COVID-19

by Gerald Sauer

The coronavirus pandemic has changed virtually everything we know about the practice of law. Attorneys now interact with their clients via Zoom conferences rather than in person. Documents are filed remotely, not hand-delivered. Trials now include remote jury selection, video attendance, masks and social distancing. Civil matters, already substantially backlogged, have moved into the slow lane.

The article examines statutory changes enacted during and in response to the pandemic, as well as procedural changes implemented by trial and appellate courts to help keep the justice system operating during this unprecedented time.

The Article Qualifies For California MCLE Self-Study Credit

Read full story on DailyJournal.com

The Nondisclosure Agreement: Time to Revamp?: Gerald Sauer’s article for Bloomberg Law

Nondisclosure agreements serve an important purpose, but the time has come to reign them in, writes Gerald Sauer, a founding partner at Sauer & Wagner LLP in Los Angeles. When drafted too broadly NDAs can cause harm to those who sign them, and may even violate laws or be unconstitutional, he says.

by Gerald Sauer

The nondisclosure agreement is as American as apple pie. Lawyers can recite Nondisclosure Agreement (NDA) terms in their sleep, and nobody would, until recently, have done anything of substance without one.

We now seem to be in NDA free fall. Ex-administration officials write tell-all books; former business partners openly talk about their experiences; and family members air dirty laundry. All of them signed nondisclosure agreements.

Read full story on Bloomberg Law

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