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Archive for the ‘Employment Law Blog – CA’ Category

U.S. Department of Labor Issues COVID-19 Guidance on FLSA and FMLA

Posted on: March 20th, 2020

By: Catherine Scott

As the federal government continues to grapple with questions from employers regarding COVID-19, the federal agencies have begun to roll out new guidance. The latest comes from the U.S. Department of Labor (DOL), which has issued guidance for employers seeking answers concerning their obligations pursuant to the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA).

DOL Guidance for FLSA

The FLSA provides rules and regulations concerning how employees must be paid, including the payment of wages and overtime. Employers around the country have wrestled with whether they can reduce salary and/or hours or furlough or lay off employees as the economy slows down due to COVID-19 and whether employees are required to be paid and in what manner.

The DOL has answered several frequently asked questions concerning these issues. The latest guidance provides as follows:

  • For non-exempt, hourly employees, employers can reduce their hours and/or pay, so long as minimum wage and overtime requirements are met. Non-exempt, hourly employees also can be placed on an unpaid leave of absence or furlough or be laid off due to an economic slowdown;
  • For exempt employees, employers are generally required to pay these employees their full weekly salary if any work is done during the workweek (subject to exceptions, such as when the employer is open for business and an employee, who has no PTO remaining or hasn’t qualified, misses an entire day of work).  Of course, exempt employees can be required to use any accrued, unused vacation or paid time off under the FLSA for any missed time so long as they are still being paid their salary.
  • All employees must generally be paid for telework performed at home, subject to the limitations described above;
  • Employees of private organizations are generally not allowed to volunteer their normal services without pay, subject to a few limited exceptions. Employees may volunteer for public organizations without pay if they (a) perform such services for civic, charitable or humanitarian reasons without promise, expectation, or receipt of compensation; (b) offer their services freely and without coercion, direct or implied; and, (c) are not otherwise employed by the same public agency to perform the same services as those for which they propose to volunteer.

Pay issues can be complicated and very fact-specific (and state-specific) so if you have a question about furloughs, layoffs, or schedule or compensation reductions (whether temporarily or permanently), please contact us so we can assess the individual factual and legal circumstances of your situation.

DOL Guidance for FMLA

Similarly, employers have wrestled with their obligations under the FMLA and whether they must provide job-protected leave to employees who need time away for a qualifying reason.  Initially, it is important to understand that any employer that has between 50 – 500 employees should first familiarize itself with the Families First Coronavirus Response Act as that Act (which will be effective April 2, 2020) substantially expands some of the obligations traditional imposed on employers under the FMLA.  For those employers, however, that are below 50 or above 50 employees, you should keep the following principles in mind in dealing with the Coronavirus.

  • Employees who develop complications from COVID-19 may have a “serious health condition” that would trigger FMLA leave. The same is true of a “family member,” defined by the FMLA as a spouse, child, or parent, who develops complications from COVID-19;
  • However, leave taken by an employee to avoid exposure to COVID-19 would not be covered by the traditional principles of the FMLA;
  • The traditional FMLA does not currently cover employees who require leave to tend to healthy children or children who have been dismissed from school or childcare by their state governments;
  • The traditional FMLA provides only for unpaid leave to employees who qualify; however, the FMLA allows for employees to substitute paid leave in place of unpaid leave in certain circumstances and if the employer’s policies provide for such paid leave;
  • Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable.  In addition, employers may require employees to provide:
    • medical certification supporting the need for leave due to a serious health condition affecting the employee or a spouse, son, daughter or parent, including periodic recertification;
    • second or third medical opinions (at the employer’s expense);
    • periodic reports during FMLA leave regarding the employee’s status and intent to return to work; and
    • consistent with a uniformly-applied policy or practice for similarly-situated employees, a fitness for duty certification. (Employers should be aware that fitness-for-duty certifications may be difficult to obtain during a pandemic.)

The Department of Labor is generally encouraging employers to be flexible in dealing with situations involving employees affected by COVID-19, including re-examining both paid and unpaid leave policies in place at the employer and allowing paid telecommuting to occur.

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce educational content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

COVID-19: What Medical Inquiries Can Employers Make?

Posted on: March 16th, 2020

By: Jennifer Markowski

Last week, Brad Adler, addressed FAQ’s (and Answers) for Employers Dealing with the Coronavirus, COVID-19. Subsequent to that article, on March 11, 2020, the World Health Organization (“WHO”) declared COVID-19 a pandemic. Consequently, employers should follow the Equal Employment Opportunity Commission’s (“EEOC”) pandemic guidance “Pandemic Preparedness in the Workplace and the ADA,” which details what medical inquiries and testing are permissible in the workplace in light of the existing pandemic.

The Americans with Disabilities Act (“ADA”) prohibits employers from making disability-related inquiries and/or requiring employees to submit to medical examinations unless they are job-related and consistent with business necessity.  Now that COVID-19 has been declared a pandemic, according to the EEOC guidance, employers can do the following without running afoul of the ADA:

  • Send employees home who are exhibiting COVID-19 symptoms;
  • Ask employees who call-in sick whether they are experiencing fever or chills and a cough or sore throat (symptoms of COVID-19);
  • Measure employee temperatures, if COVID-19 is widespread in the community as defined by state or local health ordinances or the CDC;
  • Ask where employees have traveled;
  • Ask why employees have not reported to work (this is always permissible);
  • Implement measures to prevent infection, such as wearing masks or requiring teleworking.

As always, information obtained about an employee’s medical illness must be kept confidential and separate from the employee’s personnel file and can only be shared with individuals on a need to know basis.  Additionally, if an employee receives ADA accommodations in the workplace and is then required to telework, those same accommodations should be provided for in the telework space, unless doing so would create an undue hardship.

The Occupational Safety and Health Organization (“OSHA”) has also issued guidance for pandemic preparedness. Those guidelines are accessible here.

In addition, FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

FAQ’s (and Answers) For Employers Dealing With The Coronavirus (Updated March 11, 2020)

Posted on: March 11th, 2020

By: Brad Adler

As I’m sure many of you have heard or read, a new virus (COVID-19 aka “Coronavirus”) first found in Wuhan, China in late 2019 has been spreading across the world and is now emerging in the United States on an increasing scale.  As employment issues surrounding the Coronavirus continue to arise, below are some answers to commonly-asked questions that employers may be asking in addressing Coronavirus-related issues.

In addition, employers should read and be familiar with the Guidance the CDC issued for employers in handling Coronavirus-related issues.  https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

What Is It?

Based on what health officials know right now, the Coronavirus is not a flu, but a pneumonia-like infection.  The virus symptoms manifest as a mild to severe respiratory illness with fever, cough, and difficulty breathing. The Centers for Disease Control (CDC) believes at this time that symptoms may appear in as few as two days or as long as 14 days after exposure.

How Does It Spread? 

The disease can spread from person to person through small droplets from the nose or mouth, which are spread when a person with the Coronavirus coughs or exhales. These droplets also then land on surfaces around the person and others can catch the Coronavirus when they touch these same surfaces, particularly if they then touch their mouth, nose or eyes.

What If An Employee Tests Positive For The Coronavirus?

Ask the employee to stay out of work until 14 days after the employee was diagnosed with the Coronavirus, unless a doctor certifies that it is safe for the employee to return to work earlier.  Further, you should promptly notify colleagues who work with that employee that they may have been exposed to a person with the Coronavirus and request that they visit their doctor to confirm that they did not contract the virus.  In the absence of a confirmed diagnosis of an employee, we suggest that you do not issue a blanket instruction that all employees have to get tested as such a directive could run afoul of the Americans with Disabilities Act’s general prohibition against medical examinations for employees unless “job-related and consistent with business necessity.”

Further, employers should ensure the confidentiality of all employees’ medical information to prevent harassment or a violation of the ADA’s medical privacy rules.  If an employer believes it is necessary for the safety of other employees to identify a confirmed Coronavirus victim to others in the workplace so the employer can determine who may have been exposed to that individual, it is important to first discuss the issue with employment counsel (and possibly governmental officials) due to the privacy implications, both under the ADA and state law.

What Should An Employer Do If An Employee’s Household Member Tests Positive For The Coronavirus Symptoms?

We believe it is appropriate to ask employees to notify your designated Coronavirus-response person (typically someone in Human Resources) if a member of an employee’s household is diagnosed with Coronavirus.  Once notified, the employer should request the employee stay out of work until the employee visits his/her doctor to confirm that the employee did not contract the virus or they also can self-quarantine themselves for 14 days.

What Should An Employer Do If An Employee Presents Coronavirus Symptoms, But Is Not Confirmed With The Coronavirus?

If you have an employee who presents Coronavirus symptoms at work (but not yet diagnosed with the Coronavirus), we suggest that you send the employee home and request that they get tested and cleared from having the Coronavirus before returning to work or they also can self-quarantine themselves for 14 days.  If the employee exhibits the symptoms at home, ask them to stay out of work until they get tested and cleared from having the Coronavirus or they also can self-quarantine themselves for 14 days.  It is important that your Human Resources representative is involved in these situations so you can navigate any unique issues.

Further, you should try and determine who the employee interacted in close proximity with at work (typically six feet or less) in the previous 14 days, including by asking the employee for help in identifying those individuals.   After those individuals are identified, you should notify them of their potential exposure to an individual with the Coronavirus.

Employers, however, should avoid identifying the infected employee to other employees (or customers or vendors) to prevent harassment or a violation of the ADA’s medical privacy rules.  If an employer believes it is absolutely necessary for the safety of other employees (or customers or vendors) to identify a confirmed Coronavirus victim to others in the workplace (or customers or vendors) so the employer can determine who may have been exposed to that individual, it is important to first discuss the issue with employment counsel (and possibly governmental officials) due to the privacy implications, both under the ADA and state law.

What Should An Employer Do If An Employee Reports That He/She Interacted With Somebody Who Has Been Diagnosed With The Coronavirus?

Once notified, the employer should request the employee stay out of work until the employee visits his/her doctor to confirm that the employee did not contract the virus or they also can self-quarantine themselves for 14 days.  Further, you should try and determine who the employee interacted in close proximity with at work (typically six feet or less) in the previous 14 days, including by asking the employee for help in identifying those individuals.   After those individuals are identified, you should notify them of their potential exposure to an individual with the Coronavirus.

Employers, however, should avoid identifying the infected employee to other employees (or customers or vendors) to prevent harassment or a violation of the ADA’s medical privacy rules.  If an employer believes it is absolutely necessary for the safety of other employees (or customers or vendors) to identify a confirmed Coronavirus victim to others in the workplace (or customers or vendors) so the employer can determine who may have been exposed to that individual, it is important to first discuss the issue with employment counsel (and possibly governmental officials) due to the privacy implications, both under the ADA and state law.

What Should An Employer Do If An Employee (Or An Employee’s Household Member) Returns From An International Trip, But Has Not Exhibited Any Coronavirus Symptoms

This is tricky so you have to make sure you are watchful in dealing with this type of situation.  As of March 3, 2020, the State Department has advised travelers to avoid all non-essential travel to China, Italy, South Korea, Azerbaijan, Mongolia, Turkmenistan and Iran https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories.html/.  The CDC also has advised identified Japan (Level 2) and Hong Kong (Level 1) as areas of heightened risk for the coronavirus.  https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html.

As a result, if an employee does travel internationally to China, Italy, South Korea, Azerbaijan, Mongolia, Turkmenistan and Iran, even if they present no symptoms, it is advisable to require that employee to either wait 14 days or visit their doctor to confirm that they did not contract the virus before returning to the workplace.  If an employee travels to Japan or Hong Kong, but exhibits no symptoms, you can require the employee to wait 14 days before returning to the workplace, but you should typically avoid requiring an employee to present any type of clearance from a doctor.  If an employee travels internationally to a location that is not on the CDC or the State Department’s coronavirus travel advisory list and exhibits no symptoms, then we do not advise imposing any type of return to work condition.

Do I Have To Pay The Employee While Out Of Work?

Under the Fair Labor Standards Act (federal wage/hour law), you do not have to pay non-exempt hourly employees while they are out sick.  If, however, they perform work while at home, you must pay them for those hours (so it is critical that the employees keep a record of their hours worked).  If a non-exempt hourly employee wants to use PTO while the employee is out sick and not being paid, that is permissible.  For exempt employees, unless they are out for an entire workweek, you should pay them their normal salary for the workweek in which they miss time because of your “stay out of work” instruction.  Of course, many states and some cities and counties have their own wage and hour, leave and paid time off laws that you will need to consider when assessing how you handle Coronavirus-related absences.

Can I Restrict Employees From Traveling Internationally?

If the travel is work-related, then an employer can ban an employee from traveling internationally.  If the travel is not work-related, then you typically will be permitted to restrict travel to international destinations, but it is prudent to limit the travel to areas designated as at least a heightened-risk of coronavirus by the White House, CDC or the World Health Organization as several states have laws that prohibit an employer from taking action against an employee for “lawful off-duty” activities.  These types of restrictions could prove important both to protect employees from exposure to the Coronavirus and to limit the risk of travelers becoming stranded by travel limitations or quarantines overseas.

How Do I Avoid National Origin Discrimination?

This one is pretty simple.  Don’t make judgments on how to treat an employee based upon the national origin (or race) of the employee.  Rather, your decisions should be based upon reasonably objective information that you have received from both the employee and the U.S. Government (or World Health Organization) on where the employee is going and whether he has interacted with an individual diagnosed with the virus.  Remember that an employer may deny time off for an employee’s personal travel, but it should be based on the employee’s travel destination, the business cost of any potential resulting quarantine, or other legitimate business-driven interest.

What If An Employee Wants To Wear A Respirator Or Mask At Work Or Requests Not To Come To Work?

At this time, there is no general requirement for non-healthcare employees to wear respirators or other types of personal protective equipment and the CDC is not recommending use of facemasks or any other protective equipment by the general public.  As a result, employers have a wide amount of discretion to determine whether to allow the use of a respirator or a facemask.  For any employee who requests to not come to work out of fear of being around others and contracting the virus, unless that employee has a reasonable objective belief that someone at the workplace has the virus, you can deny the request.  If an employee still refuses to come in, you are permitted to discipline the employee.  If the employee is exempt, you also likely can choose not to pay them for the all-day absence.  Of course, if the employee is non-exempt, you don’t need to pay the employee for any hours unless the employee is working.

What Can We Do To Help Reduce Potential Exposure To The Coronavirus?

Providing employees with a written reminder about effective steps for reducing the risk of exposure to Coronavirus is a great way to let employees know you are paying attention to the issue and looking out for their safety.  A few things to include:

  • Remind employees to cover their mouths and noses when they cough or sneeze, and to immediately throw used tissues in the garbage.
  • Remind employees of the importance of regularly washing their hands (for at least 20 seconds with soap and water) and/or using an alcohol-based hand sanitizer containing at least 60 percent alcohol.
  • Avoiding touching your eyes, nose, and mouth with unwashed hands.
  • Avoiding close contact with people who are sick.
  • Ensure you have enough relevant supplies, including soap, hand sanitizer, tissues, paper towels, disinfectant, and trash receptacles.
  • Encourage the regular cleaning of frequently-touched surfaces in the workplace, such as workstations, countertops, and doorknobs.
  • Practice social distancing
  • Consider the use of tele-conferencing options instead of in-person meetings
  • Consider the feasibility of implementing a remote work policy

We know this is a new area for many employers so, if you have questions or need a sample “notice” to employees or a remote work policy, please do not hesitate to contact Brad Adler ([email protected]) or 770.818.1413.

Just Don’t Go There: The Ninth Circuit Rules that Prior Pay History Can’t Be Used To Justify Compensation Decisions

Posted on: March 10th, 2020

By: Anastasia Osbrink

For years, employers across the U.S. have taken into account what an individual was making at his or her current job in assessing how much they would need to pay them if they left and joined the employer.   And, for years, when one employee claimed discrimination based upon sex under the federal Equal Pay Act because he or she was not paid as much as another employee of another sex performing similar duties, the employer would rely upon prior pay as a basis for the pay differential between the two employees.

Well, no more in states in the Ninth Circuit (Alaska, Arizona, California and Hawaii).  The Ninth Circuit recently made clear that employers cannot justify pay disparity between employees based on pay history from prior jobs under the Equal Pay Act. (Rizo v. Yovino, No. 16-15372 [9th Cir. Feb. 27, 2020] [en banc].)  The defendant in Rizo, the Fresno County Office of Education, argued that the plaintiff’s disparity in pay fell did not violate the Equal Pay Act because the County sets new employees’ salaries based on a 5% raise over their previous salaries. The Ninth Circuit disagreed with the defendant, holding that pay history from a prior job is not job-related and not an acceptable basis for a pay disparity.

Additionally, the Ninth Circuit pointed out that it would defeat the purpose of the Equal Pay Act to allow pay disparity based on gender to self-perpetuate because of prior discriminatory pay. It is also worth noting that in 2018, AB 168 made it illegal in California to seek salary histories from job applicants. Therefore, not only is it illegal for employers in California to ask about salary history, it is now also clear based on the ruling in Rizo that they should not base a system of pay on prior job salaries even if that information is voluntarily provided by job applicants.

Please contact Anastasia F. Osbrink at [email protected] if you have any follow-up questions about the Rizo ruling.

Securing the Bag: California Supreme Court Rules Exit Searches Compensable

Posted on: March 2nd, 2020

By: Gregory Blueford

Shunning the position of the United State Supreme Court’s decision in Busk v. Integrity Staffing Solutions, Inc., the California Supreme Court has ruled that time spent on the employer’s premises waiting for and undergoing company-mandated exit searches of bags and personal technology devices brought to work purely for personal convenience by employees is compensable as “hours worked” in California.

In Frlekin v. Apple, Inc., the employer, Apple, had a bag search policy that required search of employees’ bags, packages, purses, backpacks, briefcases, and personal Apple technology devices whenever the employee left the store. Apple said the time spent waiting for and undergoing these searches was not compensable as “hours worked” in California, in part because employees could opt not to take a bag and therefore would not be required to undergo the search; in other words, the decision to bring a bag to work was “voluntary.”

The California Supreme Court said that the California Wage Orders had to be reviewed “liberally” and with an eye towards “protecting and benefiting employees.” The Court ruled that Apple’s search policy “controlled” employees by (1) requiring employees to comply with the policy under the threat of discipline, including termination, (2) confined employees to the premises as they waited for and underwent a search, and (3) required employees to complete tasks while awaiting and during the search like finding a manager and waiting for that person to conduct the search, thus, making the time is compensable. The California Supreme Court reasoned that the wage and hour standards of the Fair Labor Standards Act and subsequent decision in Busk, which generally exempts non-required work activities, “differs substantially” from California law, and that a State may enact law that provides employees greater protection than the FLSA, which California has done.

Employers with bag or any similar exit searches must be weary of this decision and ensure that this time is considered compensable and employees stay on the clock until the conclusion of the search.

If you have questions or would like more information, please contact Greg Blueford at [email protected].