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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…

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…

In case you missed it (did anyone miss it?), President Joe Biden was sworn into office yesterday.  Although workplace issues are hardly the only pressing item on the new President’s agenda, employers should be prepared for the rollout of additional employee protections under the Biden administration.

Priorities That President Biden Has Already Announced

Extending and …

California Assembly Bill 1867 (signed by California Governor Gavin Newsom on September 9, 2020) and Senate Bill 1383 (signed on September 17, 2020) significantly expand the rights of California employees to both paid and unpaid leave.  In addition, and especially as they relate to Senate Bill 1383, these laws will require California employers to promptly…

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

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

Just when you thought it was safe to go back in the water (or stop sheltering in place anyway), a wave of COVID-19-related employment lawsuits are being filed across the country.  At our last count, nearly 50 labor and employment-specific cases have been filed.  The first in Oregon was filed earlier this month by a former assisted living facility employee who seeks $950,000 in damages for alleged whistleblower and sick leave retaliation.  Although the types of claims being brought by employees are typical—wage/hour, whistleblower, contract, wrongful termination, protected leave and discrimination claims, WARN Act violations—employers now face a perfect storm: defending real-time decisions made to keep their businesses afloat against the backdrop of a global pandemic that has completely disrupted business operations.  (And as we all know, “You can’t just call time out and stroll on into the beach if you don’t like the way things are going.”)

As we have mentioned during several COVID-19-related client briefings, courts will now have to wade into murky waters and provide clarity on how newly enacted or amended local, state and federal leave laws such as the Family First Coronavirus Response Act (“FFCRA”) operate, especially where statutory and regulatory guidance has not always been clear.  Courts will also need to provide direction on how well-settled legal schemes, such as disability and contract law, apply in the face of a pandemic.

Of particular concern for employers right now are trends in wage and hour class actions suits, which can pose significant risk of crippling wage penalties and plaintiffs’ attorney fees, as well as leave discrimination and whistleblower retaliation claims. These kinds of claims could draw sympathy from jurors and sink a business.  Here are a few of examples of employment cases recently filed across the country, and trust us, “You’re gonna need a bigger boat.”
Continue Reading COVID-19 Litigation: The Next Wave

Thank you to everyone who attended our webinar on Taming the COVID-19 Chaos, Part 6—Bringing Employees Back to Work.  If you missed it, be on the lookout for details on future webinars to help employers navigate these challenging times.

We received some questions about whether employees can continue to use FFCRA leave after the end…

On April 1, 2020, the U.S. Department of Labor (“DOL”) issued regulations for the Families First Coronavirus Response Act (“FFCRA”), which went into effect the same day.  The regulations are available here.

The majority of the content in the regulations is not new and simply repeats information that is also available in the DOL’s FAQs guidance (which has been updated several times since it was first posted).  The DOL’s FAQs are here, and our blog post highlighting key takeaways from the FAQs as initially posted is here.

The latest information for employers from the regulations and the updated FAQs includes:

Clarification of small business exemption.

  • Employers with fewer than 50 employees may assert they are exempt from providing emergency paid medical leave (“EPML”) or emergency paid sick leave (“EPSL”) to employees who miss work due to a school or childcare closure. (Note that there are numerous qualifying reasons to use EPSL, including when an employee has been advised to self-quarantine or is showing symptoms consistent with COVID-19 and seeking a medical diagnosis.  However, there is no exemption that will allow small employers to avoid providing EPSL altogether.)
  • To deny an employee EPML or EPSL as outlined above, an “authorized officer” of the small employer must determine that:
    • providing such leave would cause the employer’s expenses and financial obligations to exceed available business revenue and cause the employer to cease operating at a minimal capacity;
    • the absence of the employee(s) requesting such leave would pose a substantial risk to the financial health or operational capacity of the employer because of their specialized skills, knowledge of the business, or responsibilities; or
    • the employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services that the employee(s) requesting leave provide, and these labor or services are needed for the employer to operate at a minimal capacity.
  • Small employers are not required to formally “apply” for the exemption; rather, they must “document the facts and circumstances . . . justify[ing] [the] denial” of leave. The small business exemption does not require prior approval from the DOL, and neither the FFCRA nor the regulations create an express right for employees to challenge the employer’s determination that it qualifies.  Thus, it would appear that small employers have a great deal of discretion to determine whether they qualify for the exemption.
  • Small employers who assert the exemption must still post the FFCRA notice to employees.

Use of employer-provided paid time off during EPML.  After the first two workweeks of EPML, employers can require that employees take EPML concurrently with any employer-provided paid time off (such as vacation or personal leave) that would otherwise be available for employees to care for their children under the employer’s policies during their absence.  Employees can also elect to use employer-provided paid time off concurrently.  During the first two workweeks of EPML, employees may elect to use their employer-provided paid leave or EPSL, but the employer may not require them to do so.
Continue Reading Department of Labor Issues Regulations and Updates Guidance for Families First Coronavirus Response Act