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.
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.
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.
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.
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
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.
The state of California, along with the rest of the country, is reopening - in fits and starts. Those who still have jobs face the prospect of returning to unsafe workplaces. Companies still in business are trying to figure out how to stay above water financially while complying with ever-changing health and safety mandates.
Even though law firms have suffered along with the rest of the business world - many have downsized substantially during the pandemic - there is no shortage of work for employment attorneys. The list of potential actions by workers against their employers is growing to unprecedented levels. But there are strategies that can forestall the avalanche of claims.
We are now six months into the pandemic and various social distancing orders, and in that time, the California legislature has passed quite a few employment laws, some of which are COVID-related. Below is a summary of these new laws and amendments to current laws.
COVID-19 Reporting Requirements for Employers
Under AB 685, employers are required to notify employees, representatives of the employees, and employers of subcontracted employees, in writing, within one business day of receiving notice of a potential workplace exposure to COVID-19. Employers are not required to inform all employees of potential exposure; rather, they need only inform the above-mentioned individuals who were on the premises at the same worksite as the potentially infected individual within the infectious period. “Worksite” is defined as the “building, store, facility, agricultural field, or other location where a worker worked during the infectious period.” “Infectious period” means “the time a COVID-19 positive individual is infectious, as defined by the California Department of Public Health.” Employers must also inform these individuals of COVID-19 related benefits to which they may be entitled, including, workers’ compensation, various forms of sick leave available, and anti-retaliation and anti-discrimination protections. Employers must also notify these individuals about disinfection and safety plans that the employer plans to implement per CDC guidelines.
Additionally, employers must notify public health officials within 48 hours if the numbers of cases are considered an “outbreak,” which is defined as three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.
Employers may not disclose employee medical information unless otherwise required by law. Employers must maintain records of the written notices it provides to employees, employee representatives, and employers of subcontracted employees for at least three years.
This law goes into effect on January 1, 2021.
Workers’ Compensation for COVID-19 Injuries
SB 1159 codifies the governor’s executive order that created a rebuttable presumption that an employee who is infected with COVID-19 within 14 days of working outside the home became infected at the workplace, and as such, the medical and other related costs are compensable under workers’ compensation.
While the executive order expired on July 5, 2020, the newly enacted SB 1159 retroactively codified it, but also created more limited workers’ compensation protections to certain workers through January 1, 2023. For example, under SB 1159, if, after July 5, 2020, specific front line workers, such as firefighters, peace officers, and employees who provide direct patient care, test positive within 14 days after the employee performed services at the employee’s place of employment, there is a disputable presumption that the illness arose out of and in the course of the employment and is covered by workers’ compensation for full hospital, surgical, medical treatment, disability indemnity, and death benefits.
Additionally, if employees not mentioned above test positive during an outbreak at the employee’s place of employment, and whose employer has five or more employees, there is a disputable presumption that this injury arose out of and in the course of employment and is covered by workers’ compensation, and the same benefits as mentioned above are compensable. An “outbreak” exists if (1) the employer has 100 or fewer employees at a specific place of employment (i.e. a building, store, facility, or agricultural field where an employee performs work), and 4 employees test positive for COVID-19, or (2) the employer has more than 100 employees at a specific place of employment and 4 percent of the number of employees who reported to the specific place of employment test positive for COVID-19 during a continuous 14-day period. This section of the bill is retroactive to July 6, 2020.
SB 1159 also provides reporting requirements to the employer’s workers compensation claims administrator when the employer knows or reasonably should know that an employee has tested positive for COVID-19.
SB 1159 is effective immediately and remains in effect until January 1, 2023.
Expanded Family Leave for Smaller Employers
SB 1383 expands the California Family Rights Act (CFRA) to require employers of five or more employees to provide up to 12 workweeks of unpaid protected leave to an employee (1) to bond with a new child, (2) to care for their own serious health condition, or to care for a child, parent, grandparent, grandchild, spouse, or domestic partner who has a serious health condition, or (3) because of a qualifying exigency related to the covered active duty or call to covered active duty or an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States. Similar to the CFRA and New Parent Leave Act (NPLA) requirements, the employee must be employed with the employer for at least 12 months and have at least 1,250 hours of service in order to qualify for the leave.
While the leave is unpaid, an employee may elect, or the employer may require, an employee to substitute any of the employee’s accrued vacation leave or other accrued time off. If the leave is for the employee’s own serious health condition, the employee may elect, or the employer may require the employee to substitute accrued paid sick leave during the period of leave. If the parties mutually agree, the employee may use accrued paid sick leave to bond with a child or care for a family member, as described above.
Under existing law, if both parents of a child are employed by the same employer, both employees receive a total of 12 weeks of unpaid protected leave during a 12-month period. Under the new law, both employees are entitled to 12 weeks of leave during a 12-month period.
This law goes into effect on January 1, 2021.
Amendment to Independent Contractor Law
AB 5, which went into effect on January 1, 2020, created a presumption that a worker was an employee, and codified the ABC test to determine whether a worker was an independent contractor. AB 5 included some exemptions to the ABC test, and for the most part required application of the common law test – commonly referred to as the Borello test – to those exempt categories.
Governor Newsom recently signed AB 2257, which provides additional exemptions under AB 5. The additional categories of workers who are exempt from the ABC test (subject to certain requirements for some categories), and instead apply the Borello test, include music industry professionals; performance artists; specialized performers hired to teach a class for no more than one week; appraisers; registered professional foresters; licensed landscape architects; home inspectors; manufactured housing salespersons; competition judges; and certain individuals engaged by international exchange visitor programs, among others. AB 2257 also eliminated some of the restrictions that AB 5 set on the journalism industry, and expanded the business to business exemption and referral agency exemption.
The bill is effective immediately.
Expanded Supplemental Paid Leave for COVID-19
AB 1867 requires employers who employ 500 or more employees in the U.S. or health care workers who were exempt from the Federal Family First Coronavirus Response Act (FFCRA) to provide supplemental paid leave for COVID-19 related illnesses. The paid sick leave applies to any employee who leaves his or her home in order to perform work for the employer and is unable to work due to the following:
- The covered worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
- The covered worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
- 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.
Each employee is entitled to the following:
- 80 hours of paid sick leave if they are full-time and worked at least 40 hours in the two weeks preceding taking the paid sick leave.
- If they work a normal schedule of less than 40 hours, then the total number of hours the employee is normally scheduled to work during a two-week period.
- If the employee works a variable schedule, then 14 times the average number of hours the employee worked during the 6 months (or less if the worker has been employed for less than 6 months) preceding the date of taking the paid sick leave.
The employee may determine how many hours of paid sick leave he/she wants to use up to the maximum available, but must request the leave verbally or in writing.
The rate of pay for the sick leave is the greater of (1) the employee’s regular rate of pay for the last pay period, (2) the state minimum wage, or (3) local minimum wage, but no more than $511/day and $5,110 total.
If the employer already provides paid sick leave to employees for the reasons set forth above (other than the regular California paid sick leave), the employer does not have to provide additional paid sick leave. For example, Los Angeles employees would not receive an additional 80 hours of paid sick leave if they already received supplemental paid sick leave under the LA ordinance, or if an employer provided the same paid sick leave benefits on its own accord. Additionally, if an employee has already taken unpaid time off for the reasons set forth above between March 4, 2020 and the present, the employer can retroactively provide pay for that time instead of giving additional paid time off.
Covered employers must provide notice to employees via this poster: https://www.dir.ca.gov/dlse/COVID-19-Non-Food-Sector-Employees-poster.pdf
Covered employers are also required to inform each employee of how much available paid sick leave he/she has on each wage statement (similar to the requirement for California’s regular paid sick leave law), to go into effect on the next pay period.
This law goes into effect immediately, and expires on the latter of December 31, 2020 or until the expiration of any federal extension of the FFCRA.
The penalty for non-compliance is the greater of $250/day or three times the amount of paid sick days withheld, up to a maximum of $4,000 per employee.
Harassment Training Deadline is Approaching
Just a reminder that the deadline to provide anti-harassment training to all employees (two hours to supervisory employees, one hour to non-supervisory employees) is January 1, 2021. All employers with five or more employees are required to provide this training.
If you need assistance finding the right training course for your employees, or would like us to provide virtual training to your employees, please contact our office.
New Minimum Wage
The state minimum wage for employers with 25 or fewer employees is increasing to $13/hour, and $14/hour for employers with 26 or more employees, effective January 2, 2021. Please make sure to check local minimum wage laws that may be higher than the state minimum wage requirements in all jurisdictions in which you conduct business.
If you have any questions on any of the above, or would like us to review or update your employee handbook, please do not hesitate to contact Sonya Goodwin.
by Gerald Sauer
Contact tracing is universally recognized as a key weapon in the fight against the spread of the coronavirus pandemic, and it has been successfully implemented in countries around the world. In the United States, however, contact tracing is presently more concept than reality. People just don't trust the government with their personal information, and for good reason. Despite being protected by the nation's most stringent data privacy laws, Californians continue to witness a haphazard approach to their privacy by the vary entities entrusted with their data.
How then can they be expected to feel sanguine about having their real- time location and health information tracked and shared with others? Proposed federal legislation introduced in the U.S. Senate on May 7 was ostensibly designed to protect personal data collected for purposes of contact tracing, but it is full of holes. S.3663, the COVID-19 Consumer Data Protection Act of 2020, would actually impose few meaningful restrictions on the use of collected data, would afford no private right of action for abuse, and would supersede state laws such as the California Consumer Privacy Act with respect to contact tracing data.
Arbitration – Time to Fix a Flawed Forum: Gerald Sauer’s article for the Journal of Consumer & Commercial Law
by Gerald Sauer
Businesses have increasingly embraces arbitration because it helps them avoid the roulette-wheel outcomes of jury trials. This article originally appeared in Law 360.
Arbitration has become a hot-button issue. In September, the House of Representatives passed the Forced Arbitration Injustice Repeal (FAIR) Act, intended to ban mandatory arbitration in the workplace, and California enacted AB 51, the latest state effort to protect workers from forced arbitration. The Economic Policy Institute and the Center for Popular Democracy predict that, by 2024, almost 83% of the country's private, non-unionized employees will be subject to mandatory arbitration, an increase of 56% since 2017.
The Daily Journal quoted Gerald Sauer in its article, "Contact tracing orders present dilemma for businesses."
"What happens to the information after this is over? You're forcing a business that's on life support to do something extra. It's a burden. How do they know the list won't be compiled, sold and monetized?" he said.
Privacy concerns are why tech firms including Apple and Google backed away from partnerships with governments for contact tracing, Sauer said. Business owners are also likely worried about facing liability from patrons over data disclosure.
"The longer the pandemic goes on, the more the erosion of privacy interests," Sauer said. "There are crises you have to take steps for public welfare but you should view it like a game of chess, not checkers. Think about moves on the board down the road so you can anticipate what happens after. There shouldn't be a patchwork approach. California has come up with a comprehensive plan in theory that still has holes in it in the use of private information to battle this virus."
Read full story at The Daily Journal (subscription required)
by Gerald Sauer
Gerald Sauer is interviewed by Professor Diana Simon about how the pandemic has impacted complex civil litigation.
As the economy has started to open back up, employers of all kinds should have a return to work plan in place to prepare for the inevitable return of employees to the workplace. Here are just some tips on how to plan for that return:
- Communicate, communicate, communicate
- Many people are experiencing heightened anxiety and fear due to all of the unknowns right now. While employers are also trying to navigate the many unknowns, it is beneficial to keep employees informed of tentative dates of reopening (to the extent possible and with the understanding that these dates are flexible), what the “new normal” might look like when they get back to the office, and what the employer will do to ensure a safe work environment. Sending periodic emails about these items prior to opening the workplace might relieve some of the anxieties that employees are facing right now.
- Many employees will be scared or reluctant to come back to work. It is best practice to be aware of employee’s concerns, and remain communicative on what you are doing to create a safe work environment for employees. Remind employees to talk to their supervisors/HR if they have any issues so they can be addressed early on. It is also important to remind employees that they will not be retaliated against for expressing their concerns.
- Social Distancing Measures
- Consider restructuring the workplace to increase physical space between employees, as well as customers and other visitors. This may include installing plexiglass or other physical barriers, or removing some chairs or tables in break rooms and other common spaces to reduce the risk of too many employees congregating.
- Host meetings virtually when possible, or limit the amount of people physically present.
- If possible, stagger attendance or limit who can be at the workplace to “essential” employees and allow others to work remotely.
- Stagger breaks to limit the amount of people in the break room or other common areas at any given time.
- Discourage people from shaking hands, hugging, or otherwise coming into physical contact with other individuals (including customers and vendors).
- Limit business travel
- Require customers to pay online or via a handsfree device to limit the exchange of money and credit cards
- Safety Measures
- Remind employees to engage in appropriate hygiene practices, including washing hands regularly, covering their mouths when they cough, not touching their eyes, nose, or mouth, etc.
- Require employees to wear personal protective equipment (PPE) like masks and gloves when around other individuals, including employees, customers, and vendors.
- Provide tissues, no touch receptacles, soap and water, hand sanitizer, and cleaning sprays/wipes to employees to help them keep their workspace clean.
- Be diligent about cleaning the workplace. Designate an employee(s) to clean high-touch areas throughout the day and remind employees to keep their workspace clean.
- Employee Screening Procedures
- Employers have different options for screening employees during the pandemic that would not otherwise be legal under the Americans with Disabilities Act. Employers may take employees’ temperatures before they are allowed to enter the workplace, or may require employees to get tested for COVID-19 before coming to work.
- Employers may ask employees if they are exhibiting common symptoms of COVID-19, such as fever, cough, shortness of breath, or sore throat. Remember to check the CDC website continuously, as the symptoms continue to expand and evolve.
- Send home any employee who is exhibiting signs of COVID-19 or have a temperature of 100.4 of higher.
- However, it is important to consider the following:
- There are specific notice requirements under California law that may be implicated if employers plan to take temperatures or require tests. Check with legal counsel before doing this.
- Taking temperatures or tests are not complete safeguards, since some individuals who have the virus may not experience fevers, and a negative COVID-19 test one day doesn’t mean the employee will not be infected the next day.
- If checking temperatures, it is recommended to designate a specific person(s) to do this, and maintain a confidential log. It is also recommended to get a contact-free thermometer to reduce the risk of exposure.
- Non-exempt employees who are sent home early may need to be paid reporting time pay.
- Non-exempt employees should be paid for time spent taking their temperature or COVID-19 tests if required by the employer.
- Employers must adhere to privacy laws and keep all medical information confidential, and maintain medical files separate from personnel files.
- Accommodating Employees
- Some employees may have underlying health conditions that put them at greater risk of contracting the virus. These individuals may need to be accommodated under the ADA and FEHA or other applicable state laws.
- Employees with mental health conditions that have been exacerbated by the pandemic may need to be accommodated.
- Employees who have child care issues may need to be accommodated under the Expanded Family Medical Leave Act or local ordinances.
- Remember that a leave of absence is only a reasonable accommodation if there are no other accommodations available that would allow the employee to continue working. Consider various options to try to allow the employee to continue working, and engage with the employee to determine what the employee’s limitations are and how they may be accommodated.
- Planning for Future Outbreaks
- As the economy opens back up and people are permitted to return to work, the virus will continue to spread. Create a plan for if/when an employee, customer, or vendor notifies you that he/she has been infected. This should include determining how to inform employees while maintaining confidentiality; cleaning the workplace thoroughly and perhaps hiring a third-party cleaning service to conduct a deep-clean; informing vendors and customers of any temporary shutdown of the business; hiring temporary workers to continue operations if a portion of the workforce is out sick.
- Remember to comply with all wage and hour laws, and avoid potential claims of discrimination by treating all employees equally, unless they request accommodation (i.e. don’t exclude individuals over 65 or other high-risk individuals from the workplace just because they are higher risk – wait until they ask for accommodations before assuming they need one)