Do Employees Still Have to Wear a Mask?

Please note: The information below is based on what we know today, and that rules and regulations are literally changing daily. Employers need to be nimble and flexible – check your local rules on a daily basis.

As more and more people receive the COVID-19 vaccine, employees are starting to ask questions about mask requirements.  Mask requirements currently vary widely (and are changing frequently) depending on the state in which the employee works:

California

All Californians are still required to wear masks whenever they are in public except when they are:

  • alone in their car or only with those within their households;
  • working alone in a private office or room;
  • outdoors and staying six feet away from others not in their households;
  • eating or drinking, as long as they are distanced from others;
  • undergoing a service that involves nose or face, such as a dental procedure;
  • working and are required to wear respiratory protection; or
  • specifically exempted from wearing face coverings by other guidance.

Children younger than two years old are exempt, along with people with a disability, medical condition or mental health condition that prevents them from wearing a face covering, people who are hearing impaired or are communicating with someone who is hearing impaired, and people for whom wearing a face covering would create a risk related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.  There are currently no exemptions for individuals who are fully vaccinated.

California’s current guidelines regarding masks and face coverings are available here:    https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/guidance-for-face-coverings.aspx.

Idaho

Idaho never had a statewide mask mandate.  Rather, mask requirements were defined by local health districts and municipalities.  Boise currently still requires mask usage in “public places,” which means any place open to all members of the public without specific invitation, including retail businesses; government offices; medical, educational, arts, and recreational institutions; public transportation, including ridesharing vehicles; and outdoor public areas.  Several other Idaho cities have similar requirements.

The Idaho legislature has made several efforts to initiate legislation banning mask mandates.  None have yet become law although that remains a possibility in the remaining days of this year’s session as there have been efforts on several fronts to place restrictions on the pandemic response.  Nothing in the proposed legislation would specifically bar an employer from requiring employees to wear a mask. Continue Reading

Governor Newsom Signs New COVID-19 Relief Measure

On March 19, 2021, California Governor Gavin Newsom approved Senate Bill 95 (“SB 95”) which entitles most California employees to a new bank of COVID-19 supplemental paid sick leave.  The law will go into effect on March 29, 2021.

California’s prior law entitling workers to COVID-19 supplemental paid sick leave expired on December 31, 2020, with the expiration of the mandatory requirements of the Families First Coronavirus Response Act (“FFCRA”).  Since then, a handful of California cities and counties have passed local ordinances entitling employees within their jurisdiction to a continued right to paid sick leave for reasons related to COVID-19.  With the passage of SB 95, the vast majority of California employees will soon be entitled to those same rights.

The new law requires California employers with more than 25 employees to provide up to 80 hours of paid sick leave to employees who are unable to work or telework for any of 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 contracting COVID-19.
  • The employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • The employee is caring for a family member who is subject to a quarantine or isolation order or who has been advised to self-quarantine by their doctor.
  • 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.

Continue Reading

DOL Announces Plans To Rescind FLSA Joint Employment Rule, Withdraw FLSA Independent Contractor Rule

Late last week, the U.S. Department of Labor (“DOL”) announced that it plans to rescind the Trump DOL rule that tightened the standards by which two or more companies could be deemed a joint employer for purposes of the Fair Labor Standards Act (“FLSA”).  The same day, the DOL announced its plans to withdraw the Trump DOL rule that loosened the standards by which an individual could be deemed an independent contractor rather than an employee under the FLSA.  (The joint employment rule is being “rescinded” because it actually went into effect on March 16, 2020, at least in part; the independent contractor rule is being “withdrawn” because the DOL is taking action before its effective date.)

Neither move is unexpected, because as we wrote about here and here the Biden DOL had signaled several times that it intended to revisit numerous policy decisions by its predecessors.  In addition, the joint employment rule never fully went into effect because of a federal court order striking the rule’s provisions regarding “vertical joint employment,” which refers to the scenario in which an employee is hired through a staffing agency but assigned to perform services on behalf of a different organization.  The order was the result of a lawsuit filed against the Trump DOL by 17 states and the District of Columbia that challenged the merits of the rule. Continue Reading

U.S. House of Representatives Passes Union “Wish List” Bill

Last week, the U.S. House of Representatives narrowly passed the Protecting the Right to Organize (“PRO”) Act, which would make sweeping union-friendly changes to the three primary federal laws that govern private-sector labor relations: the National Labor Relations Act (“NLRA”), the Labor Management Relations Act, and the Labor-Management Reporting and Disclosure Act of 1959.  The bill will now head to the Senate for a vote and, if it becomes law (which is highly unlikely to happen, as explained below), would drastically alter the landscape of traditional labor law.  For example, the PRO Act would:

  • Expand the definition of “employees” who are eligible to join unions to include individuals who would otherwise be considered independent contractors (for example, gig economy workers).
  • Give the National Labor Relations Board (the “Board”) the right to award liquidated and consequential damages against employers in retaliatory discharge cases, in addition to assessing civil penalties. (Under current law, employees may only recover back pay.)
  • Give employees the right to sue the employer in court for violations of their rights under the NLRA if the Board does not proceed with the case. Under current law, an employee’s only recourse is to file an administrative charge with the Board; if the Board decides not to pursue the case, the employee cannot do so on his or her own.
  • Make it easier for unions to win elections, including by:
    • Formalizing the “quickie” election rules that the Board previously implemented under the Obama administration, under which union elections occur as little as 13 days after a petition is filed;
    • Prohibiting employers from requiring employees to attend meetings to discuss the pros and cons of union membership;
    • Permitting unions to petition for representation of small groups of employees or “micro-units,” who may have been selected for their pro-union views; and
    • Removing employers as “parties” in Board representation proceedings, such that they do not have input into whether the sought-after bargaining unit is appropriate, and where or how the election is conducted.
  • Expand joint employer liability, making an employer jointly liable for another employer’s unfair labor practices merely because the joint employer had indirect control over the employees, or reserved the right to exercise such control. (In other words, employers could be liable for violations they did not actually commit.)
  • Eliminate “right-to-work” laws that are currently in effect in 27 states (but not in Oregon, Washington, or California). Right-to-work laws prohibit the requirement that employees pay union dues as a condition of their employment.

The PRO Act  already passed the House once in early 2020, but was never taken up by the then Republican-controlled Senate.  The Senate is now split 50-50, with Democrats holding a one-vote majority in the Senate by virtue of Vice President Harris’ ability to break any ties.  Nonetheless, even if all Senate Democrats vote for the bill, the PRO Act is unlikely to become law unless it is supported by 60 members of the Senate, which is doubtful at best. (To pass the PRO Act with a 51-50 majority, Senate Democrats would either need to eliminate the filibuster rule or persuade the Senate parliamentarian that the PRO Act could pass through the so-called “reconciliation” process, which applies to legislation tied closely to the federal budget.  Neither is likely.)  Nevertheless, we will continue to monitor the PRO Act and keep you up to date on any new developments.

FFCRA Update: What the March 2021 Federal Stimulus Bill Means for COVID-19-Related Leave

On March 10, 2021, Congress passed its landmark $1.9 trillion COVID-19 relief bill, and President Biden signed the bill into law on March 11.  The bill does not require employers to continue offering Families First Coronavirus Response Act (“FFCRA”) leave, but it extends the FFCRA’s payroll tax credit provisions for employers who choose to offer such leave through September 30, 2021.  The bill also expands the qualifying reasons for FFCRA leave for employers who choose to offer it.

Here are the key FFCRA-related provisions in the March 2021 stimulus bill for employers to be aware of:

  • The requirement that employers provide emergency paid sick leave or expanded family medical leave under the FFCRA expired on December 31, 2020. The new law does not change that; providing FFCRA leave is now optional.
  • The new law expands the types of leave for which a payroll tax credit can be claimed to include leave taken when an employee is (1) obtaining a COVID-19 vaccine; (2) recovering from any illness or condition related to the COVID-19 vaccine; or (3) seeking or awaiting the results of a COVID-19 diagnosis or test if either the employee has been exposed to COVID-19 or the employer requested the test or diagnosis.
  • The COVID-19-related Tax Relief Act of 2020 had extended through March 31, 2021 the tax credit to reimburse employers for the cost of providing paid FFCRA leave. The new law continues that payroll tax credit through September 30, 2021 for employers who voluntarily decide to provide employees with FFCRA leave.
  • The new law resets the 10-day limit for emergency paid sick leave under FFCRA, starting April 1, 2021. If an employer decides to continue to voluntarily provide emergency paid sick leave under FFCRA, the employer can claim a payroll tax credit to offset up to 10 days of wages paid as qualified emergency paid sick leave from April 1 to September 30, 2021, even if employees previously exhausted their emergency paid sick leave entitlement.

Unpaid leave remains a requirement for child care-related reasons in Oregon.

Note that under the Oregon Family Leave Act, Oregon employers are still required to provide up to 12 weeks of unpaid leave to eligible employees who need time off to care for a child whose school or childcare provider has been closed in conjunction with a public health emergency, including COVID-19.  We previously blogged about those requirements here.

If you have any questions, please contact us.

DOL Delays Roll-Out of New Independent Contractor Rule

Another day, another Trump-era Department of Labor (“DOL”) rule that’s been put on the shelf for 60 days.  Last week, we blogged about the Biden DOL’s decision to delay the rollout of the tip rules that the Trump DOL adopted in the final weeks of its administration from March 1, 2021 until at least April 30, 2021.  Yesterday, the Biden DOL announced that it was delaying the rollout of the Trump DOL’s independent contractor rule from March 8, 2021, until at least May 7, 2021.  The rule, which we blogged about here, codified the “economic realities” test that the DOL and the federal courts have long applied to determine whether a worker qualifies as an employee or an independent contractor.  Labor and progressive groups railed against the rule, arguing that it improperly expanded who would qualify for independent contractor status, particularly for gig-economy workers.

Their pleas appear to have been heard.  Just like the tip rules, it remains to be seen whether the Biden DOL will scrap the independent contractor rule entirely or simply make changes to it to better align with its priorities.  As always, we’ll keep you posted.

Utah Employers’ Ability to Use Non-Competes May Be Substantially Limited

The Utah State Legislature is currently considering legislation that would significantly limit the use of non-compete agreements in Utah.  Senate Bill 46 (SB 46) has passed the Senate and received a favorable recommendation from the Utah House Business and Labor Interim Committee.  The bill adds to restrictions the Utah State Legislature enacted in 2016, which limited post-employment enforcement of non-compete agreements to one year.  Under the proposed bill, the Legislature would also restrict the reasons for which an employer can seek a non-compete agreement.

Under current law, non-compete agreements in Utah must be no longer than one year, limited to a reasonable geographic area, and intended to protect only legitimate business interests of the employer.  Under common law, legitimate business interests supporting enforcement of a non-compete agreement have included a range of sensitive business information, like trade secrets, intellectual property, business plans, financial information, customer lists, and referral sources.  Courts have also found things like good will, customer relationships, and investment in employee training to be legitimate business interests supporting enforcement of a valid non-compete agreement.  The legislative history of SB 46 shows the Legislature’s intent to substantially limit an employer’s ability to protect many of these recognized legitimate business interests.

As initially introduced, SB 46 appeared to be an attempt merely to codify the common law recognition of legitimate business interests recognized by the Utah courts.  While some observers expressed concern about limiting the list of legitimate business interest to only those currently recognized, greater limitations soon followed.  The Utah State Senate amended SB 46 to remove most of the classes of intangible property currently protectible by non-compete agreements, leaving only trade secrets and intellectual property as the legitimate business interests allowed to support enforcement of a non-compete agreement.  Trade secrets and intellectual property already receive substantial protection under state and federal law.  Utah employers seeking to protect other types of information or their investment in good will, customer relationships, or employee training may find themselves with few tools if SB 46 is enacted.

DOL Delays Rollout of New FLSA Tip Rules

As we previously blogged about here, in the final days of the Trump Administration the Department of Labor (“DOL”) announced a series of new rules regarding how and to whom employers can distribute tips.  The new rules were scheduled to go into effect on March 1, 2021.  We predicted that the Biden Administration might seek to modify or at least halt the rollout of the rules once it assumed power following the inauguration.  And so it has come to pass: this week, the DOL announced that it was postponing the rollout for 60 days while it reviews the new rules further.  We will continue to monitor the fate of the rules and keep you updated about their status. In the meantime, if you have questions about the treatment of tips (e.g., who can and cannot receive them) please reach out to any of our attorneys.

Temporary Workers in California After Sullivan, Ward, and Oman

The California Supreme Court’s 2011 decision in Sullivan v. Oracle Corp. (“Sullivan”) and its more recent decisions in Ward v. United Airlines (“Ward”) and Oman v. Delta Air Lines, Inc. (“Oman”) provided employers with a certain amount of clarity in regard to non-California residents working within the State on a temporary basis.  Sullivan made clear that nonresident employees working in California for extended periods of time – “entire days or weeks” – for California-based employers are entitled to overtime pursuant to California Labor Code section 511.  As for Ward and Oman, they made clear that nonresident employees are entitled to the protections of Labor Code sections 226 and 204 if California is their principal place of work  or if California serves as the base of their work operations.

What these cases also made clear, however, is that what is true for Labor Code sections 226, 204, and 511 may not necessarily be true for other portions of the Labor Code.  Specifically, the California Supreme Court made clear in all of these cases that the application of California wage and hour protections to nonresident employees could vary on a statute-by-statute basis.  While this ambiguity and clarity keeps California labor and employment attorneys busy, it is not especially helpful for employers looking to properly navigate the law and avoid litigation. Continue Reading

Ninth Circuit Rules That Per Diem Payments Must Be Included in Regular Rate Under the FLSA

It’s common knowledge that an employee’s overtime rate is “time and a half” the regular rate of pay.  But that truism begs the question: what exactly is the regular rate of pay?  Earlier this week, the Ninth Circuit analyzed whether the Fair Labor Standards Act (“FLSA”) required a company to include per diem payments that it made to its employees (ostensibly for the purpose of reimbursing them for travel expenses) in the regular rate, in addition to the workers’ ordinary hourly pay.

The case is Clarke v. AMN Services, LLC, No. 19-55784 (9th Cir. Feb. 8, 2021), and like many wage and hour cases it arose quite innocuously.  AMN Services is a staffing company that places health care workers (primarily nurses and technicians) on short-term assignments.  Sometimes the assignments are in the health care workers’ local areas, but frequently they require the workers to travel some distance from where they usually reside.  In addition to their hourly rates, AMN Services pays the traveling health care workers per diems that reimburse them for the cost of meals, housing and other incidental expenses when they travel more than 50 miles away from their residences on assignment.  AMN Services did not include the per diem payments in the traveling workers’ regular rates when calculating their overtime.

The general rule under the FLSA is that “all remuneration” has to be included in the rate calculation.  Among other exceptions, the FLSA allows employers to exclude from the regular rate “payments to an employee which are not made as compensation for his hours of employment.”  Expense reimbursements are among the most common types of payment that can be excluded from the regular rate under this provision.  So were the per diem payments “compensation for . . . employment” or reimbursement? Continue Reading

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