As safe in-person voting became an issue in other states, California Governor Gavin Newsom issued an executive order requiring each county’s election officials to send vote-by-mail ballots to registered voters for the November election. The Governor also issued an executive order requiring counties to provide early polling locations for at least three days prior to election day. In light of these initiatives to ensure wide availability of voting options in California, employers may question if they still are required to provide time during the workday for their employees to vote?

Under California Election Code § 14000, employers must provide two hours of paid time for employees to vote, if the employee does not have sufficient time outside of working hours to vote in a statewide election. This requirement applies to private and public employers in the state. While this year there are expanded opportunities for voting, employers must still provide leave as needed by employees pursuant to the California Election Code. There is no exception under the Code due to the availability of mail-in ballot or early voting options.

In order to take leave to vote, employees must request the time at least two working days’ notice prior to the time off for voting desired.

According to the California Election Code, employers must also post a notice of voting time requirements at least 10 days before an election conspicuously at the place of work, if practicable, or elsewhere where it can be seen as employees come or go to their place of work. Employers can satisfy this requirement by posting a copy of the “Time Off to Vote” notice which is found on the Secretary of State’s website.  Employers that are largely telecommuting due to COVID-19 may consider alternate methods of communication, such as providing notice to remote employees via email or through their company intranet.

If you need assistance ensuring compliance with local or federal laws pertaining to elections and voting, including time off requirements contact a Jackson Lewis attorney to discuss.

For many, the start of school looks different this year: from all virtual, to hybrid, to parent’s choice.  Employers required to provide leave under the Federal Families First Coronavirus Act (“FFCRA”) may be wondering how to administer FFCRA leave under this new regime.

Not to be out-classed, the U.S. Department of Labor (“DOL”) issued new FAQs regarding use of FFCRA leave in these new school opening arrangements and clarified when FFCRA leave is not available.

The new FAQs – numbers 98, 99, and 100, respectively, provide guidance. Specifically:

  • An employee may take FFCRA leave on a child’s remote learning days in a hybrid learning method: Some schools are using a “hybrid” or “alternate day” attendance method.  Generally, this is when a school is open every day, but students are only on-site some days and remote learning on other days.  According to the DOL, an employee is eligible to take paid leave under the FFCRA on days when the employee’s child is not permitted to attend school in person and must instead engage in remote learning.  The DOL clarifies that this leave can be taken as long as the employee is actually caring for the child during that time and only if no other suitable person is available to do so.
  • FFCRA leave is not available to take care of a child whose school is open for in-person attendance, but the employee chose a remote learning option for the child:  Some schools provided parents with a choice between having their child attend school in-person or participate in a remote learning program.  If a remote learning program was chosen, FFCRA leave is not available because the school is not “closed” due to COVID-19 reasons.  Rather, the child is home because the employee chose to have the child remain home. However, the DOL provides the caveat that if, because of COVID-19, an employee’s child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, the employee may be eligible to take paid leave to care for the child.
  • If the school year is beginning solely under a remote learning program due to COVID-19 concerns, employees may take FFCRA leave:  An employee may take paid FFCRA leave while the child’s school remains closed and only remote learning is available, because the school is closed in this scenario.  However, if the school reopens, whether FFCRA leave is available will depend on the type of reopening, as discussed above.

The full DOL FFCRA FAQs can be found here.  The DOL periodically updates these FAQs, so this link should be checked often.

 

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

Under the Washington COVID-19 Food Production Workers Paid Leave Program, no food production employer in Washington may operate from August 18, 2020, to November 13, 2020, unless the employer provides its workers with paid leave for certain qualifying events.

The Program was created by Governor Jay Inslee under Proclamation 20-67.

Read the full article here. 

Read about a similar leave created in California on Jackson Lewis California Workplace Law Blog

On August 8, 2020, Wanda Vázquez Garced signed into law an amendment to the Puerto Rico Working Mothers Act. Under the amendment, adoption leave benefits were extended to female employees adopting minors 6 years old or older. Now, these adopting mothers will have a paid leave of 5 weeks. The leave will begin from the date the child is received in the family nucleus. This amendment does not alter the adoption leave that was already provided for in the Working Mothers Act providing 8 weeks of paid leave to mothers adopting a child 5 years old or younger, not enrolled in school. Employees must provide 30 days’ notice to their employer of their leave request and intention to adopt a minor, as well as their return to work plans.

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

The U.S. Equal Employment Opportunity Commission (EEOC) issued two technical assistance documents on August 5, 2020, addressing accommodation issues under the Americans with Disabilities Act (ADA) for employees who use opioid medications or may be addicted to opioids. They provide employers insight into how the EEOC envisions information exchange and accommodation efforts. Read more.

Shortly after the Department of Labor issued its FFCRA regulations, the state of New York filed a lawsuit challenging some of the provisions.  Today (four months after the regulations went into effect, and just five months before the FFCRA is set to expire), the federal district court in New York struck down four provisions in the regulations.  The four provisions struck down include:

  • the definition of who qualifies for the healthcare provider exemption;
  • the exclusion from benefits of employees whose employers do not have work for them;
  • the requirement that employees secure consent for intermittent leave for certain qualifying reasons; and
  • the requirement that documentation be provided before taking leave.

The court let stand the remaining provisions of the DOL’s regulations.

The court’s decision leaves open a lot of questions for employers who are trying to comply with the law (and also demonstrates the inherent issues when congress and federal agencies try to rush something through).  Employers who have been following the regulations, may now find themselves at risk.   And the decision leaves employers left to surmise important questions such as what definition of healthcare provider should be used under the FFCRA, and whether employees on furlough or who otherwise do not have work available (regardless of whether the employee is unable to work due to a COVID issue) are eligible for pay.

The court’s decision creates new risks for employers trying to comply.  For public employers and employers with less than 500 employees, the rules have changed.  Contact your Jackson Lewis attorney for assistance in developing an approach that helps minimize the risk for your organization.

The U.S. Department of Labor (“DOL”) recently issued additional clarification on its FAQs and guidance regarding the FMLA and the FFCRA in the context of the COVID-19 pandemic.  Some highlights include:

Telemedicine Visits Are “In-Person” Visits with a Healthcare Provider under the FMLA

Telemedicine visits (those medical appointments that are conducted by remote video conference via computers or mobile devices) will be considered as “in-person” visits with a health care provider under the FMLA.  However, to be considered an “in-person” visit, the telemedicine appointment must:

  • include an examination, evaluation, or treatment by a health care provider;
  • be performed by video conference;
  • and be permitted and accepted by state licensing authorities.

The DOL reasons that this approach serves the public’s interest because health care facilities and clinicians are under advisories to prioritize urgent and emergency visits and to preserve personal protective equipment and patient-care supplies.  However, the DOL notes that telemedicine visits will be considered “in-person” visits only until December 31, 2020.

COVID-19 Tests May be Required Before Returning to Work From FMLA Leave

The DOL also provides updated guidance on whether an employer can require employees returning from FMLA leave to get a COVID-19 test before returning to work.  The DOL explains that the FMLA does not prohibit an employer’s return-to-work COVID-19 testing requirement, as long as the testing requirement applies to all employees returning from any type of leave, whether FMLA or non-FMLA.  Note, however, that an employer should also consider any applicable state law or order that may impose restrictions on when COVID-19 testing is permitted and what types of COVID-19 tests are permitted.

DOL Provides Insights into Reopening and Return to Work Scenarios under the FFCRA

The DOL also added additional questions and answers to the FAQs on the Families First Coronavirus Response Act (“FFCRA”).  In these new FAQs, the DOL explains:

  • When an employee returns to work from FFCRA leave and there are lingering concerns regarding whether the employee is returning to work too soon and could potentially expose others to COVID-19, an employer may:
    • Consider temporarily reinstating the employee to an equivalent position with less co-worker interaction or require the employee to telework, and
    • Require an employee comply with job requirements that are unrelated to being out on FFCRA, such as a general requirement that any employee be tested for COVID-19, or telework, if the employee has interacted with a COVID-infected person.  Such a requirement must apply to all employees.
    • The DOL cautions that an employer may not require an employee to telework or be tested for COVID-19 simply because the employee took FFCRA leave.
  • The FFCRA emergency paid sick leave is limited to a total of 80 hours, even if an employee took FFCRA before being furloughed and is now returning to work from furlough.  Any balance under 80 hours of emergency paid sick leave can be taken through December 31, 2020 for qualifying reasons.
  • If an employee took expanded FMLA prior to a furlough, an employee is still entitled to any balance of FMLA leave under 12 weeks upon returning to work after a furlough.
  • An employer may not extend an employee’s furlough because the employee will need to take FFCRA leave to care for the employee’s child upon return to work.  The DOL reminds employers that they may not discriminate or retaliate against employees (including prospective employees) for exercising or attempting to exercise rights under the FFCRA.

Links

Links to the updates discussed in this blog are below:

COVID-19 and the Family and Medical Leave Act Questions and Answers (See Questions 12 and 13 for more information on the above discussion.)

COVID-19 and the American Workplace (FFCRA FAQ) (See Questions 94-97 for more information on the above discussion.)

Employers are encouraged to continue to check for updates to DOL FAQs and guidance, which is continually evolving during this COVID-19 pandemic.

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

On April 16, 2020, California Governor Gavin Newsom issued Executive Order N-51-20, (“Executive Order”) which provides COVID-19 related paid sick leave for “food sector workers” who work for larger employers in the state. The California legislature is now considering codifying those leave requirements with Senate Bill 729.

Who is a covered “Employer”? 

As with the food sector leave provided under the Executive Order, the leave would apply to employers with 500 or more employees in the United States. The language of the Senate Bill uses the same definitions of employers as the Executive Order.

Who is a “Food Sector Worker”?

The Senate Bill’s definition of food sector worker mirrors that of the Executive Order and includes the following:

  • Employees engaged in the canning, freezing, and preserving industry, as defined under Wage Order 3-2001, section 2(B).
  • Employees engaged in industries handling products after harvest, as defined under Wage Order 8-2001, section 2(H).
  • Employees engaged in industries preparing agricultural products for the market, on the farm, as defined under Wage Order 13-2001, section 2(H).
  • Employees employed in an agricultural occupation, as defined under Wage Order 14-2001, section 2(D).
  • Employees who work for an employer that operates a food facility, as defined under the California Health and Safety Code section 113789.
  • Employees who deliver food from a food facility, as defined under the California Health and Safety Code section 113789.

The food worker also must qualify as an essential critical infrastructure worker and be exempt from the requirements imposed by any statewide stay-at-home order.  Further, the food worker must leave their home to perform work for or through their employer.

What time off is provided?

Like the Executive Order, the proposed bill requires covered employers to provide full-time employees eighty (80) hours of paid time off and part-time employees a proportionate time off for the following reasons:

  • The food sector worker is subject to a federal, state, or local quarantine or isolation order.
  • The food sector worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
  • The food sector worker is prohibited from working by the food sector worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

Unlike the Families First Coronavirus Response Act (“FFCRA”) and other recently passed supplemental paid sick leave ordinances in California, neither the leave outlined in the Executive Order nor the Senate Bill provides leave for those caring for a family member who is quarantined or sick, or caring for a minor child whose school or childcare has closed due to COVID-19.

The Senate Bill also amends the California Health and Safety Code to mandate employers to allow food sector workers to wash their hands every 30 minutes or more if needed. This requirement is also outlined in the Executive Order.

The leave set forth in the Executive Order expires when the Governor lifts the stay-at-home orders. Conversely, the proposed legislation would sunset when the state of emergency is lifted for the State.

Jackson Lewis is tracking new rules and regulations related to COVID-19 and the workplace. If you have questions or concerns about complying with California workplace regulations, contact a Jackson Lewis attorney to discuss.

You can hear the parents wailing across the country (almost like kindergartners on their first day of school), as states begin to announce their plans to keep physical schools closed or alternate between in-school and virtual classes for the upcoming year. The collective parent wail is outmatched only by that of their employers, who are faced with the Hobson’s choice of what to do with employees who will now seek more flexibility in scheduling, work expectations or remote work to account for their continued childcare and home-schooling obligations.

Outside of any FFCRA obligation or state paid sick leave/school leave/family leave obligation (some of which now cover this scenario), in most jurisdictions there is no legal obligation to accommodate parents who cannot perform their job because of childcare issues.  But parents often account for a third of the workforce. An inflexible approach may lead to a loss of key employees and negatively impact the ability to attract future talent. And there is increasing concern that the nature of an employer’s response to this issue may contribute to claims of disparate impact against women or discrimination based on family responsibilities.

As a practical matter, employers, who are facing their own economic struggles, can ill afford to pay employees for unproductive time spent educating, supervising or caring for children at home. And the job still needs to get done. This has left many employers asking, “Is there a solution to this “academic” problem?”

Certainly, not a simple one. Once you move beyond leave obligations, employers will need to leverage flexibility and creativity.

Some options employers may consider, include:

  • Create or expand permanent remote work roles: Reimagine roles to facilitate long-term remote work opportunities, achieving corresponding savings by decreasing or redesigning commercial real estate footprints.
  • Create temporary “transitional” remote work opportunities: While not legally required, employers can go “above and beyond” to create temporary but productive work opportunities that can be performed remotely. In creating such roles, employers would have the ability to define the duties, compensation level, and duration of the programs. Think outside of designated job titles and identify productive work that can be performed on a temporary basis remotely. Clear communication reserving all rights to modify or discontinue programs is critically important.
  • Enhance flexible scheduling: Allow employees to work around school hours or around their spouse’s schedule so they can share the childcare. (The DOL recently added FAQ 15 allowing employers to pay employees who work in separate smaller blocks throughout the day only for hours actually worked without violating the continuous workday rule.)
  • Expand childcare benefits: If you need workers physically present at the workplace on a full or part-time basis, consider offering onsite childcare or partnering with a service to provide childcare benefits or education.
  • Support Home Tutoring: Encourage or assist employees who need childcare to look for college-aged (or even high school-aged) students (particularly those interested in going into education) who may also be learning remotely and may have time to provide childcare or tutor during the day. Perhaps even provide an on-line forum where such information can be shared (with appropriate disclaimers, of course). Consider hosting a virtual “Tutor/Childcare Fair” providing options and resources for employees or providing a stipend to help defray the costs of tutoring/childcare.
  • Adjust FSA benefit plans: Consider allowing mid-year changes to FSA plans in accordance with recent IRS guidance.
  • Modify FTE Status: Consider allowing employees who are struggling to manage work and childcare responsibilities to switch temporarily to part-time or reduced hours, with corresponding reductions in pay.
  • Create temporary unpaid leave programs:   Develop temporary unpaid leave programs for employees who have no statutory or company sources of paid or unpaid leave available to them.
  • Explore temporary or permanent transfers: Allow employees to transfer to open positions that can better accommodate the remote work or flexible scheduling. Allow remote work where possible.

As the saying goes, “necessity is the mother of invention.” Employers can brainstorm ways to get through this time period, knowing that with the right planning and communication they can lawfully discontinue and sunset any voluntary programs. Employers adopting such initiatives would be well-served to communicate the temporal or other limitations of such programs and perhaps have employees sign acknowledgments confirming that any special “COVID-19” programs can be modified or discontinued at the employer’s sole discretion.

In addition, while many employers have been very lenient to date with the productivity of employees working remotely, now that it appears the need may continue through the end of the year and possibly for the entire school year, employers should approach this next wave of flexibility requests with more intention. Set forth the expectations for the job and talk to employees about performance issues that have arisen with any previous flexibility. Make sure they understand that while you are willing to work with them during this difficult time, and want them to succeed, ultimately, it will require effort on their part to ensure that the job gets done.

Of course, even the most flexible employer may find it difficult to allow flexibility in every role. In those circumstances where there is no protected leave available, and the employer is either not interested in providing an accommodation or it is not possible to accommodate in a fashion that will allow the job to get done, then the choice may need to be left to the employee as to whether they continue in the position (and find someone to provide childcare) or whether they need to step away from the job during this time.

As employers consider these programs and individual requests, employers must strive to ensure consistency and avoid assumptions about who in a family acts as the primary caregiver. Even if a request cannot be granted, handling each request in a thoughtful, deliberate manner will go a long way to promoting employee retention and limiting risk.

As the new school year approaches, stay educated on the latest COVID-19 developments here or contact your Jackson Lewis attorney for assistance.