California Modifies the ABC Test – But It Doesn’t Really Help

Last year, California Governor Gavin Newsom signed Assembly Bill (“AB”) 5, which signaled a seismic shift in the way California employers classify workers as either independent contractors or employees.  On September 4, 2020, Governor Newsom signed AB 2257, which modifies (slightly) some of the rules and provisions of AB 5.

To recap, AB 5 codified the California Supreme Court’s decision in Dynamex.  In Dynamex, the Supreme Court rejected the multifactor test set forth in S.G. Borello & Songs, Inc. v. Department of Industrial Relations for classifying workers and announced a new, more objective standard for determining worker classification for the purposes of the California wage orders.  Under this new standard, the burden is on the hiring entity to establish that the worker is an independent contractor who was not intended to be included within the coverage of the California wage orders.  In order to satisfy this burden, the hiring entity must establish all of the following:  (1) that the worker is free from the control and direction of the hiring entity in connection with the performance of work, (2) that the worker performs work that is outside the usual course of the hiring entity’s business, and (3) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. Continue Reading

Department of Labor Narrows FFCRA Exemption for Health Care Providers and Affirms Guidance Regarding Intermittent Leave

The Department of Labor (DOL) recently modified its guidance regarding leave under the Families First Coronavirus Response Act (FFCRA). These changes pertain most significantly to the applicability of FFCRA leave to employees of health care providers and the intermittent use of FFCRA. The changes – which take effect on September 16, 2020 – are a response, in part, to a recent New York federal district court opinion invalidating some of the DOL’s prior guidance. (See here.)

Here’s what you need to know about the DOL’s new guidance:

Health Care Providers. The DOL narrowed the applicability of the FFCRA exemption for health care providers.  Under the new guidance, not all employees of health care providers are exempt from FFCRA. Only the following employees may be excluded: (1) licensed doctors of medicine, nurse practitioners, chiropractors, dentists, and others permitted to issue FMLA certifications under 29 C.F.R. 825.125; and (2) employees who provide diagnostic, preventive, or treatment services, or “other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” This exemption includes, among others, nurses, medical technicians, and laboratory technicians. We recommend that health care providers seeking to exempt some employees from FFCRA talk to their legal counsel about whether the exemption applies.

The DOL encourages health care providers to minimize use of the exemption to the extent possible in order to prevent the spread of COVID-19. Employers may choose to allow some types of FFCRA leave (e.g., leave for employees with COVID-19 symptoms) and not others (e.g., childcare leave). Continue Reading

BOLI Permanently Expands OFLA for Eligible Working Parents Impacted by COVID-19

On the day that its temporary rule was set to expire, the Oregon Bureau of Labor and Industries (“BOLI”) issued a permanent rule to allow employees to continue to avail themselves of protected “sick child leave” under the Oregon Family Leave Act (“OFLA”) to care for a child whose school or childcare provider has been closed in conjunction with a statewide public health emergency, including COVID-19. We previously blogged about BOLI’s temporary rule here.

Based on public comment received during the permanent rule-making process, as well as the fluid nature of safety protocols with respect to childcare providers and school re-openings, the agency determined that its now permanent rule would benefit from additional, immediate clarifications to other OFLA rules.  Accordingly, BOLI simultaneously issued another set of temporary rules (effective September 14, 2020 through March 12, 2021) of which employers should be aware both with respect to implementing the expanded sick child leave and to the extent they want to provide input during the public comment period.

Under the temporary amendments, BOLI broadly defines “childcare provider” to include any “place of care” or person who cares for a child. “Place of care” includes day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.  The physical location does not have to be solely dedicated to such care.  A person who cares for a child includes nannies, au pairs, babysitters, and individuals who regularly provide childcare at no cost, for example, grandparents, aunts, uncles, or neighbors. Continue Reading

FFCRA Update: DOL Issues New Guidance Regarding Childcare Leave

The DOL recently updated its guidance regarding when childcare leave can be taken under the Families First Coronavirus Response Act (or “FFCRA”).  FFCRA requires most employers to provide employees with up to 12 weeks of protected leave, paid at 2/3rds the employee’s regular rate of pay, up to a maximum of $200 a day (reimbursed in the form of a tax credit), if an employee is unable to work or telework because the employee’s child’s school or place of care is closed for reasons related to COVID-19.

As we start the new school year, many schools are still either partially or fully closed for in-person learning, and the DOL just issued new guidance regarding what it means to be “closed” for purposes of FFCRA leave:

  • If a school has moved to online instruction or a similar model in which children are expected to attend class and/or complete assignments at home, it is still considered “closed” for FFCRA purposes.
  • If a school is operating on an alternative day or similar hybrid basis (e.g., students alternate between days attending school in person and days participating in remote learning), it is considered “closed” for FFCRA purposes only on the days that the child is not permitted to attend school in person and must instead engage in remote learning. (Note that while intermittent FFCRA leave is at the employer’s discretion, this new guidance suggests that FFCRA leave should be made available intermittently for periods of home learning.)
  • If a school gives parents a choice between having their child attend in person or participate in a remote learning program for the fall, the school is not considered “closed” for FFCRA purposes. If parents choose to have their child remain home because, for example, they are worried about their child contracting COVID-19, they are not entitled to paid leave under FFCRA.

We previously blogged about childcare leave under FFCRA here and here.  If you have any questions, please contact us.

Oregon Now Requires Face Coverings in Public and Private Offices

The Oregon Health Authority recently updated the state’s COVID-19 guidance to expand the use of face coverings to public and private offices. Under the new rule, masks, face coverings, or face shields are required at all times for office employees, including in hallways, bathrooms, elevators, lobbies, break rooms, and other common spaces, unless employees are at individual work spaces or in meeting rooms where six feet of distance from other people can be consistently maintained.

This guidance expands upon the face covering requirements we wrote about here, which applied to employees, visitors, and customers of specified covered businesses, such as grocery stores, retail businesses, and restaurants.

In addition, Oregon OSHA has released a draft of a temporary rule regarding employer obligations related to face coverings, social distancing, and sanitation in the workplace. You can read our post about that temporary rule here. OSHA is accepting comments on that rule through the end of August, with an anticipated effective date of September 14.

New York Federal District Court Rules Four Provisions of COVID-19 Paid Leave Rule Invalid

On August 3, 2020, a federal judge in the Southern District of New York held that four provisions of the U.S. Department of Labor’s (DOL) Final Rule (the Final Rule) implementing the Families First Coronavirus Response Act (FFCRA) are invalid.  This ruling is limited for now, as the court did not issue a nation-wide injunction, but its reasoning could be applied in other jurisdictions around the country.  For that reason, employers should be aware that changes to FFCRA obligations may be forthcoming.

As we discussed in a previous post, the FFCRA obligates employers to offer sick leave and expanded family leave to employees who cannot work because of certain reasons related to the pandemic.  At issue here are two major provisions of the FFCRA: Emergency Family and Medical Leave Expansion Act (EFMLEA), which entitles employees to partially paid leave to care for a dependent child due to COVID-19 school or daycare closures, and the Emergency Paid Sick Leave Act (EPSLA), which requires employers to provide paid sick leave to employees who are experiencing one of six qualifying COVID-19-related circumstances.  (See here for additional information.)

After concluding that New York had standing to challenge DOL’s Final Rule, the court considered the validity of four provisions: the work-availability requirement, the definition of health care provider, the prohibition on intermittent leave, and the documentation requirements. Continue Reading

Seattle Municipal Code Protections for Hotel Employees Take Effect

On July 1, 2020, legislation went into effect providing additional protections for certain hotel and motel employees in Seattle.  The legislation was enacted to protect Seattle hotel workers from harassment and discrimination, unsafe workloads, and job insecurity and to provide increased access to medical care.

Hotel Employees Safety Protections

In hotels and motels with 60 or more guest rooms or suites, the hotel employer must take certain steps to prevent hotel worker assault and harassment, including:

  • Providing a panic button to each employee assigned to work in or deliver items to a guest room;
  • Immediately responding when an employee activates the panic button by sending a security guard, hotel representative, or other employee to assist;
  • Posting a notice in each guest room referencing the ordinance to deter assaults; and
  • Developing a written policy against violent or harassing conduct by guests.

If the hotel employer learns that an employee was the victim of violent or harassing conduct, the employer must provide the accused guest with a written notice, take steps to safeguard employees from any future violent or harassing conduct by the guest, reassign the employee to an equivalent or better assignment at the employee’s request or consent, and give the employee up to 16 hours of paid time to seek legal help and/or obtain counseling services. Continue Reading

EEOC Guidance: Employers Cannot Test Employees for COVID-19 Antibodies

The legal landscape continues to shift rapidly during the COVID-19 pandemic.  As we reported here and here, Equal Employment Opportunity Commission (“EEOC”) guidance allows employers to require employee temperature checks, as well as worker testing aimed at detecting COVID-19, even though such testing by an employer would ordinarily raise issues under the Americans with Disabilities Act.  Daily temperature screening can be one tool to help stop the spread of COVID-19, as can be testing for COVID-19 when the circumstances warrant a more aggressive approach.  However, the EEOC has issued further guidance clarifying that while employers may continue to test for COVID-19 itself, employers may not test for COVID-19 antibodies.  The guidance says that antibody tests are not “job related and consistent with business necessity,” and therefore cannot be used as a basis for allowing employees to return to work or as a proxy for COVID-19 immunity.

For specific guidance on COVID-19 testing and workplace safety measures, please contact us.

Cloth Face Coverings Are Now Required in Anchorage

Anchorage Mayor Ethan Berkowitz has issued Emergency Order EO-13, requiring that all individuals in Anchorage wear masks or cloth face coverings when “indoors in public settings or communal spaces outside the home.”  The Order, which took effect on June 29, remains in effect until midnight on July 31 unless revoked or extended.  Settings in which masks or cloth face coverings are required include (but are not limited to) grocery stores, pharmacies, retail stores, restaurants, bars, public transportation, personal care facilities, childcare facilities, communal areas of offices, and elevators and indoor communal spaces in other buildings.

Employers are required to provide masks or cloth face coverings to employees who have direct contact with customers, members of the public, or other employees and are required to ensure that the employees actually wear them.  Several exclusions to the mask requirement apply, including individuals who have a medical condition or disability that would make wearing a mask unsafe or intolerable, individuals who are speech or hearing impaired and use facial or mouth movements to communicate, and individuals performing an activity that cannot be safely conducted while wearing a mask.  An individual declining to wear a mask because of a medical condition or disability is not required to produce medical documentation to support that decision in order to be excluded from the Order’s requirement.  Notably, however, if an employer chooses to have its own mask-wearing requirement in the workplace, the employer may still require an employee to provide medical certification supporting his or her request to be excused from that work rule because of a disability.

The Mayor’s Order has the force and effect of law.  There is a safe harbor for businesses faced with non-compliant customers: the business will not be fined as long as it has a “clearly posted sign informing customers that they are required to wear face coverings.”  One resource for signage is the Alaska DHSS website.  The agency has released a variety of downloadable and printable resources for business owners, including door signage regarding masks, floor decals to encourage social distancing, hand hygiene instructions for restrooms and break rooms, and social media graphics, all of which feature Alaska-themed artwork.

Updates on Use of FFCRA Leave for Childcare this Summer

As we previously discussed here, the Families First Coronavirus Response Act (“FFCRA”) requires employers with fewer than 500 employees to provide up to 12 weeks of paid leave to eligible employees whose school or place of childcare is unavailable due to the COVID-19 pandemic.  New guidance from the Department of Labor (which can be found here) specifically addresses FFCRA use over the summer.

An employee requesting FFCRA leave must provide sufficient information (orally or in writing) to explain the reason for the leave and that the employee cannot work as a result.  For childcare leave, the employee must also provide the name of the child, the name of the school or place of care, and a statement that no other suitable person is available to care for the child.

If the leave is due to a summer camp closure, employers may ask for the name of the specific camp or program in which the child was enrolled.  However, even if the child was never enrolled, the employee may be eligible for leave.  If the child was eligible to attend or attended in past summers, or the employee planned to send the child to the closed camp or program, the employee is eligible for the leave. The DOL emphasizes that there is no “one-size-fits-all rule” and neither current enrollment nor prior attendance are necessary to establish FFCRA eligibility.  Employers should simply require the employee to provide the name of the camp and the dates of attendance, and certify that but-for-COVID, the child would have attended camp.

Oregon employers should also keep in mind that unpaid leave to care for a child may also be available to employees under the Oregon Family Leave Act.  (See our previous post, here.)

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