On February 25, 2021, the California Supreme Court issued its opinion in Donohue v. AMN Services, LLC, holding that:

  • Employers cannot utilize the rounding of time punches in the meal period context, even if the rounding policy is neutral and even if over time it results in the employees being paid for more time worked; and
  • Records showing noncompliant meal periods raise a presumption of meal period violations that employers must rebut by: (1) establishing that employees were compensated for noncompliant meal periods; or (2) establishing that compliant meal periods were provided and employees chose to work.

AMN Services, LLC (AMN), a healthcare service and staffing company, provided nurses with 30-minute meal periods beginning no later than the end of the fifth hour of work.  AMN’s meal period policy and trainings emphasized that the meal period was to be an “uninterrupted” 30-minute break, during which employees were “relieved of all job duties,” and were “free to leave the office site.”  The policy also specified that supervisors should not “impede or discourage team members from taking their breaks.”

AMN used an electronic timekeeping system which recorded employees’ time in 10-minute increments and then rounded this time to the nearest hundredth of a minute.  For example, if an employee clocked out for lunch at 11:02 a.m. and clocked in after lunch at 11:25 a.m., the timekeeping system would record the time punches as 11:00 a.m. and 11:30 a.m.  In other words, the timekeeping system would record the meal period as 30 minutes, even though the actual meal period was only 23 minutes.  If the employee did not record a compliant meal period, the timekeeping system provided a drop-down question where employees could choose a reason for the noncompliant meal period.  No penalty was paid if the employees indicated they voluntarily chose not to take a 30-minute meal period.

The California Supreme Court found that rounding should not be applied to meal periods and is inconsistent with the California Labor Code.  Specifically, because the Labor Code and IWC Wage Order set “precise time requirements” and are designed to prevent even minor infringements, the Court found that rounding is inconsistent with the purpose of the law.  The Court also found that the rounding policy is not neutral, as “[i]t never provides employees with premium pay when such pay is not owed, but it does not always trigger premium pay when such pay is owed.”

Additionally, the Court held that noncompliant meal periods raise a rebuttable presumption of meal period violations at the summary judgment stage in proceedings. The Court rejected AMN’s argument that the presumption would result in “automatic liability” for employers since the records could “reveal that there are no triable issues of material fact.” The Court noted that to rebut the presumption, AMN would need to “provide evidence that employees voluntarily chose to work during off-duty meal periods that appear in time records to be short or delayed based on unrounded time punches.”  If AMN satisfies this burden, then the burden of production would shift to Donohue (the employee) to “show that a triable issue of one or more material facts exists as to the cause of action or a defense.”

The Court’s decision can be found here.

In light of Donohue, employers with California employees should promptly examine their meal policy to determine if rounding is used, and should eliminate these practices moving forward.  Additionally, while employers are not required to police employee meal periods, they should be diligent in enforcing their meal break (and rest break!) policies.  This will ensure that supervisors are informed, that employees know the standards, and that employers can demonstrate compliance.

The deadline for employers to file their first annual pay data report with the California Department of Fair Employment and Housing (DFEH) – March 31 — is fast approaching. For employers scrambling to comply, a reprieve is available. The DFEH is offering employers a one-month extension of the deadline, though employers need to submit their request for an extension as soon as possible before March 31.

California employers with 100 or more employees nationally are required to file the detailed report setting out demographic, pay and position information on their employees. For employers who cannot meet the March 31 deadline, the DFEH is accepting requests for a 30-day extension or “enforcement deferral period.” Where the DFEH approves the request, the employer’s deadline to submit its pay data report will be extended from March 31 to April 30, 2021. The DFEH will not consider requests for longer extensions at this time.

Requests for deferrals must be submitted electronically through the DFEH portal found here. The DFEH has made clear that employers must submit their deferral requests before March 31. The DFEH will not consider requests made in any other manner, such as by letter, email or phone.

The DFEH will consider deferral requests made on the grounds that the employer (1) lost personnel records due to a natural disaster; (2) is suffering severe economic hardship that is impairing its ability to file on time; or, (3) must make technology or infrastructure changes before it can file its pay data report.

According to my contact with DFEH executive leadership, properly completed deferral requests that are submitted on time will be readily granted by the DFEH.

Obviously, however, submitting deferral requests as early as possible makes sense. Employers need to know ASAP whether they must file the extensive reports by March 31 or they have until April 30.

Where an employer fails to file by the deadline applicable to that employer, the DFEH is authorized to file suit for an order that the employer comply and an award against the employer of the Department’s costs.

Pay data reports must be submitted by uploading an Excel file, uploading a CSV file or completing a fillable web form, all through the DFEH portal found here.

A thorough discussion of the pay data-reporting requirement may be found in my earlier blog post here.

Please join our webinar “COVID-19 Vaccination and Testing: a Primer for Employers and Other Stakeholders” scheduled for February 19, 2021 at 9:00 a.m. Pacific Time.

The webinar will address the many pressing questions facing employers, employees and those administering COVID-19 vaccines. A multi-disciplinary Fox team – drawing from health care, privacy and labor and employment partners from across the U.S. — will present. The questions to be addressed include safety and efficacy of the vaccines, liability and immunities, whether employers can mandate or incentivize employees to be vaccinated, privacy pitfalls and more.

Register HERE.

Partners Margaret Davino, Elizabeth Litten, Steven Ludwig and Jeffrey Horton Thomas will present.

We look forward to you joining this important event.

Back in March 2020, many cities and counties (including Los Angeles) started passing ordinances to provide 80 Hours of Supplemental Sick Leave to employees not covered by the FFCRA (Families First Coronavirus Response Act).  The FFCRA applied only to businesses with 500 or less employees, so various cities were filling the gaps.  As reported here, the FFCRA and all of those local ordinances expired on December 31, 2020.

But alas, to keep everyone guessing, various cities/counties in California are starting to reinstate the Supplemental Sick Leave requirements, one at a time, and retroactive to January 1st.  The County of Los Angeles, was the latest to jump into the fray, requiring its unincorporated cities to continue to provide 80 Hours of Supplemental Sick Leave to anyone eligible now who didn’t take it in 2020.  And now, it applies regardless of the number of employees (i.e. it no longer simply fills the FFCRA gap of 500+).  It is still capped at $511 per day and $5,110 in the aggregate.

Other cities with similar reinstated supplemental sick leave ordinances include Oakland, Sacramento, Santa Clara, and San Mateo.

What’s next?

Expect other cities throughout California, especially in southern California, to follow.

If you haven’t tracked who took Supplemental Sick Leave in 2020, to know who is still eligible to take it going forward, it is time to do so.  Plus, if there were employees eligible for this paid time off who didn’t receive it in January 2021, consider paying it retroactively, and reinstating the banks for any other type of paid time off taken instead (i.e. making those employees whole).

Also, pay attention to the evolving requirements in your city/county on this issue, and keep reading our blog for more updates likely to follow!

 

Although restaurants may now resume outdoor dining in Los Angeles County, the devil, as they say, is in the details. Along with giving restaurants the go ahead for outdoor dining service as of last Friday, the County Public Health Department imposed pages of new requirements on how restaurants should operate.

The new conditions on restaurant operations are set out in extensive provisions added to the County’s “Protocol for Restaurants, Breweries and Wineries,” which is an attachment to the County’s “Reopening Safer at Work” order. The expanded protocol details safeguards the County expects restaurants to take, unless any particular measure is inapplicable or not feasible at a facility.

Important measures added to the protocol and now in effect include the following:

Physical Distancing and Contact Tracing

Outdoor dining tables must be spaced at least eight feet apart “measured from one table edge to the next table edge,” under the updated restaurant protocol. Tables must be arranged so that at least six feet of distance “between customers and workers [other than the server for the table] is achieved while customers are seated . . .” Each outdoor dining table may seat no more than six people and all guests at a table must be from the same “living unit,” e.g., house or apartment. People living together in group settings such as residential care facilities, dorms, fraternities and sororities are not considered to be from the same living unit and may not be seated together under the revised protocol. All guests for a particular table must be present before the restaurant may seat any guest in the party and the host must bring the entire party to the table at one time.

The revised protocol imposes requirements intended to keep to a minimum the number of people on restaurant premises at any one time. For example, the protocol now calls on restaurants to encourage guests to make reservations for outdoor dining or to advise customers to call to check on the availability of outdoor seating before showing up. The protocol also mandates that restaurants at least consider measures including taking food orders before guests arrive for seated outdoor dining and requiring guests to wait in their cars and staff calling or texting them when their table is ready, all with the goal of dialing down “the amount of time [guests spend] at the establishment.”

In a relatively novel step, the updated protocol directs restaurants to collect contact information for each party, “if practicable in the normal course of business operation, either at the time of reservation booking or on site to allow for contact tracing,” if needed later.

Customer Service Areas

Restaurants must configure outdoor dining areas in order to “allow for the free flow of outdoor air through the entire space,” under the expanded restaurant protocol. In particular, the protocol requires that restaurants adhere to California Department of Public Health (CDPH) guidance entitled “Use of Temporary Structures for Outdoor Business Operations.” Under the CDPH guidance, now generally mandatory for restaurants in Los Angeles County, no more than 50% of an outdoor dining area’s structure may have impermeable walls, meaning a standard wall, fabric curtain, plastic barrier or other material that prevents aerosols from passing through, among other requirements of outdoor dining areas. The fact that an outdoor dining area does not have a ceiling does not make it compliant. The CDPH guidance provides helpful diagrams of allowable outdoor dining structures and those that are unlawful.

Failing to clearly comply with the requirements for configuration of outdoor dining areas could pose a particular risk of enforcement action, as County enforcement officers may easily identify questionable configurations by viewing photos on the restaurant’s website or otherwise posted online, driving by or dropping into a restaurant.

Under the updated protocol, restaurants are to ensure that “no flatware, glassware, dishware, menus, condiments, or any other tabletop item is present on tables prior to the seating of customers.” Between parties seated at a table, all such tabletop items should be “fully sanitized” and stored “in a location that prohibits potential contamination” or replaced with new, single use items. Outdoor seating and tables must be cleaned and sanitized between parties. Each table should have “either a top cloth [that is] replaced between guests or a hard-non-porous surface which is cleaned and sanitized between guests.”

New protocol provisions direct restaurants to keep the number of employees serving each party to a minimum. Restaurants also should assign one designated food employee to wrapping silverware before providing it to the customer, rather than allowing several employees to handle uncovered silverware before use by a customer. The new provisions prohibit restaurants refilling beverages at tables or from common containers, such as pitchers or decanters, and instead call for staff to give customers refills in clean glassware (or new single use containers).

In another measure imposed to move customers along and off restaurant premises, the protocol now requires that televisions and other screens “broadcast[ing] programming” in dining areas and other customer service areas, potentially including reception and waiting areas, be removed or kept turned off.

New Rules for Customers

The updated protocol requires that restaurants give the following instructions to patrons:

— “Keep your mask on until your food or drinks are served and after finishing.”

— “Put your mask on whenever a server approaches your table.”

— “Put your mask on whenever you leave your table.”

— “Wash or sanitize your hands.”

The protocol requires that restaurants give the instructions in writing on a sign or card no smaller than 3 X 5 inches on each table containing the instructions above or substantially similar language. Restaurants have the option of giving the instructions, instead, through menus, digital boards and other types of signage.

The updated protocol also requires that customers be seated to eat or drink and prohibits them from standing or walking around while eating or drinking.

Employee Management

Although many restaurants voluntarily adopted employee screening months ago, the revised restaurant protocol now requires restaurants in the County to screen employees for COVID-19 risk factors before allowing them to enter the workspace. The County’s screening requirements include asking employees to self-report symptoms and any contact they have had in the preceding 14 days with a person known or suspected to be infected. Restaurants may choose whether to check employees’ temperatures as a part of their screening process. The requirement to screen employees appears to encompass all restaurant employees reporting to work, not only those working in connection with outdoor dining operations.

Restaurants are to provide face shields which must be worn by all employees “who are or may come into contact with customers,” including hosts, hostesses, wait staff, bussers, runners and other employees “who may enter the front-of-the house area.” Face shields are to be worn along with cloth face coverings. Restaurants must clean and use face shields per manufacturer’s directions.

The updated protocol makes a point of expressing the County Public Health Department’s position that outdoor restaurant dining service, even when operated in compliance with the protocol, presents “more risk” of COVID-19 transmission than delivery, drive thru and carry out operations. While now allowing onsite outdoor dining, the protocol encourages restaurants to continue pickup and delivery services.

Closing

This post summarizes highlights of the County’s “Reopening Safer at Work and in the Community” order and “Protocol for Restaurants, Breweries and Wineries,” as they were updated as of January 29 and 28, 2021, respectively. The order and the protocol contain additional provisions and detail.   Along with allowing outdoor dining, the updated “Reopening Safer” order continues to allow delivery, drive thru and carry out, and prohibits indoor restaurant dining, as it did before the latest revisions.

Regardless of whether any particular restaurant operator is gearing up for outdoor dining, the updated order and protocol deserve close attention. County enforcement officers may take action including closing restaurant operations if violations are found.

Please contact the author or your Fox Rothschild LLP counsel for help addressing these developments.

This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.

UPDATED 2:30 p.m. January 25, 2021

California state health officials have lifted the December 3, 2020 Regional Stay Home Order.  That means reopening plans for each county will revert back to the color-coded, multi-tiered system that has been in effect since July.  The move returns 54 of the state’s 58 counties to the “widespread” or “purple” tier. Significantly, under the “widespread” tier, outdoor dining can resume.  Hair and nail salons can also reopen.  Gatherings with members from different households are no longer prohibited.  However, local county officials can impose more stringent restrictions than the state.  LA County officials had shut down outdoor dining weeks before the statewide Regional Stay Home Order.  While the current LA County restrictions are set to lift with the removal of the Regional Stay Home Order, it is possible that officials will issue a new order with clarity on restrictions for the county. San Francisco County’s Shelter-in-Place Order similarly provides that it will remain in effect only until the expiration of the state’s regional stay-at-home order.  Accordingly, expect local guidance in short-order.

UPDATE:

LA County will issue a new order to open outdoor dining on Friday, January 29, 2021.  In the interim, the County has reinstated its November 25, 2020 Order.  Specifically, indoor shopping and salons may reopen at 25% capacity.  Outdoor operations are permitted for family entertainment centers, zoos, museums, aquariums, and fitness facilities.  Private gatherings must be outdoors and are limited to 3 households and a total of 15 people.

The City of San Francisco has announced the reopening of outdoor dining and salons, commencing Thursday January 28, 2021. The relaxed restrictions will also allow outdoor museums, zoos and outdoor entertainment such as skate parks and golf courses to reopen. Limited one-on-one indoor fitness and indoor funerals for up to 12 people will be permitted. The City will announce  increased capacity restrictions for grocery stores.  Private gatherings must be outdoors and are limited to 3 households and a total of 12 people.

We expect additional County and City-specific guidance to trickle out over the course of the week through the state, so stay tuned to your local public health officials for updated news.

When it comes to employment laws, where California goes, the rest of the country often follows.  Now that we have a Vice President from the golden state, we can certainly expect more California-centric influence in Washington DC.

Curious about what that means?  A higher federal minimum wage?  More laws like AB5 to classify more workers as employees instead of contractors?  More union activity?  It is all on the table for sure.

Fox Rothschild partners Steve Ludwig and Bob Nagle will explain what to expect in a Webinar on February 5th at 9 am pacific time.   The webinar is free and you can register here.

Speech bubbles

Newly posted FAQs bring employers welcome help in understanding what they need to do to satisfy Cal/OSHA’s Emergency Temporary COVID-19 Standards (ETS). These are key takeaways from the nearly 40 new FAQs posted on January 8, 2021:

Exclusion Pay: Sensible Guidance!

Cal/OSHA’s ETS, which became effective November 30, 2020, require that employers exclude from the workplace employees with COVID-19 (COVID-19 cases) and employees with COVID-19 exposure until certain return-to-work criteria are satisfied. The ETS also require that employers continue to pay COVID-19 cases and employees with exposure their regular wages (exclusion pay) and continue their benefits while the employees are excluded from the workplace, with exceptions. (The employer is not obligated to pay exclusion pay where the employer can demonstrate the employee contracted COVID-19 or was exposed off the job, for example.)

In an important development, the new FAQs posted by the California Department of Industrial Relations (DIR) make clear for the first time that employers are not obligated to pay exclusion pay when the COVID-19 case or employee with exposure is too ill to work due to the disease. “[I]f an employee is unable to work because of his or her COVID-19 symptoms, then he or she would not be eligible for exclusion pay and benefits under section 3205(c)(10)(C) [of the ETS],” the DIR writes. “The employee, however, may be eligible for Workers’ Compensation or State Disability Insurance benefits.” The position taken by the DIR should be reliable authority for employers declining to pay exclusion pay to COVID-19 cases or employees with COVID-19 exposure who are too ill to work due to the virus and even when such employees apparently contracted or were exposed to the virus in the workplace.

The new FAQs also address how long employers must pay employees exclusion pay. “If an employee is out of work for more than a standard quarantine period based on a single exposure or positive test, but still does not meet the regulation’s requirements to return to work, that extended quarantine period may be an indication that the employee is not able and available to work due to illness.” Under the ETS, employers are not obligated to pay exclusion pay and maintain benefits where the employee is not “able and available to work.” This FAQ gives employers a potential foothold from which to terminate exclusion pay in circumstances of extended absence from work indicating the employee is too sick to work.

The FAQs also state that where an employee is receiving temporary disability benefits during the time the employee is excluded from the workplace under the ETS, the receipt of such benefits indicates that the employee is not “able and available to work” and, for that reason, not entitled to receive exclusion pay.

Cal/OSHA Enforcement: Good News, though Short Term

In good news for employers scrambling to comply with the many new requirements in the ETS, the DIR announced by the FAQs that, through February 1, 2021, Cal/OSHA “will cite but not assess monetary penalties” for violations of the ETS! The FAQs also state, however, that Cal/OSHA will not withhold monetary penalties where an employer fails to correct a violation of the ETS Cal/OSHA identifies, in the case of imminent hazards or where the employer’s violation of the ETS is also a violation of a Cal/OSHA standard that was in effect before the ETS became effective.

With respect to Cal/OSHA’s enforcement authority where employers violate the exclusion pay requirement, the FAQs take the position that, “[a]s with any violation, Cal/OSHA has the authority to issue a citation and require abatement. Whether employees or another agency can bring a claim in another forum is outside the scope of Cal/OSHA’s authority.” Cal/OSHA’s commentary in this respect may be in response to employment defense practitioners and the business community questioning whether Cal/OSHA has the authority to require that employers pay exclusion pay, as Cal/OSHA does by the ETS, and to enforce the requirement.

COVID-19 Testing Time is Compensable Time

The ETS require that employers offer COVID-19 testing “at no cost” to employees with potential COVID-19 exposure from the workplace. By the new FAQs, the DIR takes the position that, in addition to paying the employees’ wages for the “their time to get tested, as well as travel time to and from the testing site,” employers must reimburse employees for “travel costs to the testing site (e.g., mileage or public transportation costs).”

Excluding Asymptomatic Employees with Exposure

The ETS mandate that employers exclude from the workplace employees with COVID-19 exposure for 14 days from their last known exposure to a COVID-19 case. The FAQs posted this month, however, recognize that employers may allow asymptomatic employees with exposure to return to the workplace earlier, namely, after 10 days from their last known exposure to a COVID-19 case. The reduced exclusion period is a consequence of an Executive Order by Governor Gavin Newsom and guidance from the California Department of Public Health, each issued on December 14, 2020.

When Employees are Vaccinated, do the Rules Change?

In answer to the question of whether the ETS applies to employees who have been vaccinated for COVID-19, the DIR states: “For now, all prevention measures [in the ETS] must continue to be implemented. The impact of vaccines will likely be addressed in a future revision to the ETS.”

Closing

The updated FAQs answer some, but certainly not all, of the important open questions raised by the Cal/OSHA Emergency Temporary COVID-19 Standards. Nevertheless, as far as they go, the FAQs are important and deserve employers’ review. The updated FAQs are here.

Please contact the author or your Fox Rothschild LLP counsel for help addressing this subject.

This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.

California Employment Law - A Fox Rothschild Blog

As the sun rises on New Year’s Day 2021, California employment law will once again become more involved and challenging. For many employers, the following are the top five developments they most need to prepare for.

  1. One Measure of Relief: COVID-19 Paid Sick Leave Requirements Expire

For much of 2020, California law has required that employers of 500 or more employees provide eligible employees COVID-19 Supplemental Paid Sick Leave. Employees qualify for the supplemental paid sick leave if their health care provider advises they self-quarantine due to COVID-19, they are subject to a governmental isolation order related to COVID-19 or their employer bars them from working due to health concerns related to potential transmission. The law requires that covered employers provide qualified full-time employees, for example, up to 80 hours of supplemental paid sick leave.

California’s COVID-19 Supplemental Paid Sick Leave law remains in effect through December 31, 2020, and then expires, meaning employers will no longer be required to provide the Supplemental Paid Sick Leave.

The federal Families First Coronavirus Response Act (FFCRA) has, since April 1, 2020, required employers of fewer than 500 employees to provide up to 80 hours of Emergency Paid Sick Leave to employees unable to work due to COVID-19, including employees caring for a son or daughter whose school closed due to the pandemic.

Like California’s program, the federal mandate that smaller employers provide Emergency Paid Sick Leave is effective through December 31, 2020, and then expires.

The COVID-19 relief package signed into law by President Trump on December 27, 2020 does not extend federal Emergency Paid Sick Leave or include any variety of paid sick leave for those unable to work due to COVID-19.

As a consequence, effective New Year’s Day 2021, employers operating in California will be subject to paid sick leave requirements under only the state’s Healthy Workplace Healthy Family Act of 2014 and any local paid sick leave ordinance.

  1. The California Family Rights Act Expands in Historic Fashion

To date, only private sector employers with 50 or more employees have been subject to the California Family Rights Act (CFRA). The Act, like the federal Family Medical Leave Act (FMLA), requires that covered employers provide eligible employees with up to 12 weeks of job-protected leave each 12-month period when leave is needed because of the employee’s own serious health condition, to care for specified family members facing medical challenges or to care for a child.

Effective January 1, 2021, private sector employers of only five or more employees will be subject to CFRA. Also effective January 1, covered employers will be required to grant family leave to employees to care for their ill grandparent, grandchild or sibling.

My earlier blog post more fully explaining the coming expansion of CFRA and practical considerations for employers is here.

  1. State and Local Minimum Wage Rates Increase Once Again

Effective January 1, 2021, the California minimum wage for employers of 25 or fewer employees increases from $12.00 to $13.00 per hour. The state minimum wage for employers of more than 25 employees increases January 1 from $13.00 to $14.00. As a consequence of the increases, the minimum salary that must be paid as a part of satisfying the white collar exemptions increases to $58,240.00 annually for those employed by employers of more than 25 employees and to $54,080.00 annually for those employed by employers of 25 or fewer employees.

Also effective New Year’s Day, the local minimum wage increases in cities throughout the state. As of New Year’s Day, the minimum wage increases to $15.65 per hour in Cupertino, Los Altos, Palo Alto and Santa Clara, California. The minimum wage increases on January 1 in San Jose to $15.45, in Oakland to $14.36 and in San Diego to $14.00 per hour, as additional examples.

Local minimum wage figures will increase effective July 1, 2021 in localities including the City and County of San Francisco, the City and County of Los Angeles, and Santa Monica.

  1. Employers Must Notify All Employees who were On-Site with a Person with COVID-19

Assembly Bill 685, effective January 1, 2021, obligates employers to give notice broadly across the workforce whenever a person with COVID-19 was in the workplace or onsite. The obligation arises when an employer learns that an employee has or had COVID-19, that an employee was exposed to a person (employee or otherwise) in the workplace with COVID-19, or that a subcontracted worker or other person with COVID-19 was onsite. In those circumstances, the employer must notify “all employees” who were at the worksite with the infected person within the infectious period that they might have been exposed to COVID-19.

Employers must give the notice within one business day of learning of the potential exposure. Additional information must be included in the notice.

AB 685 includes additional obligations and subjects employers to costly penalties for violations.

My earlier blog post more fully describing AB 685 and offering practical guidance is here.

  1. California Employers Must File Their First Pay Data Reports with the DFEH

With the New Year, California private sector employers of 100 or more employees will be required to file with the Department of Fair Employment and Housing (DFEH) data on the race, ethnicity and sex of their employees in each of 10 job categories. According to the legislation, the data will be used for “targeted enforcement” of the state’s pay equity, anti-discrimination and wage and hour laws.

Employers must file their first reports no later than March 31, 2021.

The new law also empowers the DFEH to accept, investigate and prosecute complaints for violations of the California Fair Pay Act, an important extension of the agency’s authority.

A more complete discussion of the new requirements is in my earlier post here.

Closing

As always, well-informed, thoughtful preparation will be key to avoiding violating the many new measures becoming effective with the New Year.

Please contact your Fox Rothschild LLP counsel for help addressing any of the subjects in this post.

This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.

As an unprecedented operation begins to deploy millions of doses of COVID-19 vaccines across the country, employers question whether they may lawfully require that employees be vaccinated. Today, the U.S. Equal Employment Opportunity Commission (EEOC) weighed in with guidance.

The EEOC guidance makes points including the following:

  1. An employer (or a vendor contracted by the employer) administering a COVID-19 vaccine to employees is not conducting “medical examinations” under the Americans with Disabilities Act (ADA). The EEOC’s rationale is that simply injecting the vaccine does not, as is required for a procedure to constitute a medical exam, seek or acquire information about an employee’s impairments or health status.
  2. Screening questions posed to potential vaccine recipients before they receive the injections are “likely to elicit information about a disability.” Thus, in order to lawfully subject employees to such screening, the employer bears the burden of proving that the questions are job-related and consistent with business necessity, according to the EEOC. “To meet this standard,” the guidance states, “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”

Where an employee receives the vaccination from a provider other than the employer or a vendor not contracted by the employer, however, and the employee simply supplies proof of vaccination to the employer, the employer would not be making disability-related inquiries. In that event, according to the EEOC, the employer would not be required to prove that any screening questions were job-related or consistent with business necessity.

  1. Where an employee declines a COVID-19 vaccination on the grounds of a claimed disability, the employer must engage in the interactive process. In some instances, permitting the employee to work remotely may constitute a reasonable accommodation, according to the guidance. In assessing whether allowing an employee to continue working onsite would constitute an undue burden, the EEOC wrote that “the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown” may be relevant.
  2. Where an employee declines a COVID-19 vaccination on grounds of a religious practice or belief, the employer must extend reasonable accommodation, if possible, unless doing so would be an undue burden. In this context, the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” Where, however, an employer has “an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.”
  3. An employer administering a COVID-19 vaccine to employees or requiring proof of vaccination does not implicate employee rights under Title II of the Genetic Information Nondiscrimination Act (GINA). Employers do not use genetic information to make employment decisions, or acquire or disclose genetic information as defined by GINA, in administering vaccinations or requiring that employees show proof they were vaccinated.
  4. Where vaccinations are administered by the employer, pre-vaccination screening questions may implicate GINA. Such screening questions may, for example, include questions regarding the immune systems of family members, which may invoke Title II of GINA. The guidance recommends that, where the screening questions may implicate GINA, the employer consider requiring that employees provide proof of vaccination instead of the employer administering the vaccination program, thereby avoiding asking or knowing the answers to any screening questions.

Closing

Today’s guidance from the EEOC may be found in “Part K. Vaccinations” here.

While important, the guidance is input from only one of several perspectives that should be considered as employers explore how they will approach the vaccination question. State and local equal employment opportunity legal schemes also must be considered. In unionized workforces, whether and how the employer may impose a vaccination requirement may be a term of employment requiring collective bargaining.

Whether the employer and workplace are within an essential critical infrastructure sector under California law, and thus the employees are allowed to work onsite at this time, not merely remotely, also bears on the question of whether and when an employer may consider mandating vaccination.

Please contact your Fox Rothschild LLP counsel for help addressing the issue.

This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.