Some Benefits Optional, Some Mandatory

Nationwide Voluntary COVID-Related Paid Sick Leave: Until its December 31, 2020 expiration, the Federal Families First Coronavirus Response Act (FFCRA) required COVID-19-related emergency paid sick leave and emergency paid family leave for nearly all employers with fewer than 500 on payroll. The FFCRA’s tax rules also created a 100% wash by federal tax credits up to the leave amounts paid.

To encourage an employer’s voluntary provision of such FFCRA paid sick leave to employees who have not already used such benefits, the Consolidated Appropriations Act (CAA), 2021 extends the “100% wash” tax credits to March 31, 2021.

The CCA also extends the FFCRA’s documentation and compensation requirements. Employers must not retaliate against any employee who seeks to take such paid leave.

Employers who choose to provide such optional benefits should update their policies and forms accordingly.

California’s Mandatory Pandemic-Related Paid Sick Leave: California employers also should become familiar with newly issued Cal/OSHA emergency temporary standards (November 30, 2020) requiring “exclusion” pay and benefits to employees who are on leave to prevent any further workplace exposure. Exclusion pay is not required if an employee is unable to work for other reasons (e.g., business closure, caring for a family member or experiencing COVID-19 symptoms) or if employer can establish the excluded employee’s exposure was not work related.

See also:

• What’s New in 2021: Virtual – Employment Legal Essentials and New Workplace Laws (January 6, 2021)
• New Year, Policy Clear – Employee Handbook & Forms for 2021 (January 4, 2021)
• It’s a Wash – COVID 19 Paid Leave and Tax Credits (April 9, 2020)
• Federal Coronavirus Workplace Relief – New Paid Sick Leave, Family Leave and Tax Credits Effective April 2, 2020 (March 23, 2020)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

January 15, 2021

Some Benefits Optional, Some Mandatory

IRS Mileage Rate Decreasing 1.5 Cents

Effective January 1, 2021

The Internal Revenue Service (IRS) has announced its 2021 optional standard mileage reimbursement rate for employee business use of a personal vehicle, effective January 1, 2021, down from 57.5 cents to 56 cents/mile.

These annual adjustments stem from government survey of fixed and variable automotive operating costs, including insurance, repairs, maintenance, gasoline and oil.

Under California Labor Code section 2802, employers must reimburse employees for all actual work-related expenses necessarily incurred.

According to the state’s Division of Labor Standards Enforcement, using the IRS mileage reimbursement rate will normally satisfy an employer’s reimbursement obligation. However, if the employee can show the IRS reimbursement rate does not cover all of his/her actual and necessary business-related vehicle expenses, the employer must pay the difference.

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

December 29, 2020

From 2016’s Senate Bill (SB) 3, California minimum wage will increase on January 1, 2021 to $13.00 per hour for employers with 25 or fewer employees and $14.00 for employers with 26 or more. SB 3’s final statewide increase to $15.00 per hour will be in 2022 for larger employers and in 2023 for those with 25 employees or less. See California’s Gradual Increases in Minimum Wage, to Reach $15.00 Per Hour by January 1, 2022 (April, 2016).

Several municipalities have ordinances directing even higher minimums. This can present particular challenges for businesses with workers active in one or more of these local jurisdictions.  Best practice is to set the hourly rate by highest among the applicable cities or counties.  The UC Berkeley Center for Labor Research and Education publishes regular updates.

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Employers should promptly review the information for their location(s). Some cities require written notice to employees of the increase by a certain date.  Covered employers must also conspicuously post an updated wage notice/bulletin for each applicable jurisdiction.

See also:

• New Year’s Resolutions: Start Now – Secure Employee Handbook, Forms & Policies With 2021 Updates (October 10, 2020)
• New Local Minimum Wage Rates Effective July 1, 2020 (June 18, 2020)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

Daniska Coronado

December 23, 2020

California’s Shifting Sands Shortening of Quarantine Compliance Periods

Continually changing COVID-19 quarantine and isolation standards – commonly at variance between federal, state, and local governments — have joined death and taxes as the only certain things in life.

The latest Cal/OSHA emergency temporary standards (ETS) (November 30, 2020) specified a 14-day symptom-free employee quarantine after a COVID-19 exposure.

Now two weeks later comes the latest California Department of Public Health (CDPH) COVID-19 Quarantine Guidance (Guidance) and accompanying Executive Order N-84-20 (Executive Order), suspending that ETS 14-day quarantine rule for many asymptomatic workers.

Instead, based on the latest CDC pronouncement (December 2) and unless an applicable local public health specifies another duration, the December 14 Guidance directs a ten-day quarantine for an asymptomatic individual after the last close contact with a COVID-confirmed or symptomatic person.

The Guidance also allows exposed asymptomatic health care workers and “exposed asymptomatic emergency response and social service workers who work face to face with clients in the child welfare system or in assisted living facilities” to return to work after a seven-day quarantine following last exposure with a negative PCR test on a specimen collected after day five.

Acknowledging governmental impositions are creating hardship and distrust as the pandemic wears on, the Guidance observes that while the CDC and CDPH are recommending 14-day quarantines as “upper limits of the COVID-19 incubation period,” that duration “can impose burdens that may affect physical and mental health as well as cause economic hardship that may reduce compliance. In addition, the prospect of quarantine may also dissuade recently diagnosed persons from naming contacts and may dissuade contacts from responding to contact tracer outreach if they perceive quarantine as onerous.”

The Guidance still requires asymptomatic persons ending quarantine on these earlier ten- and seven-day time frames to:

• Wear face coverings “at all times” and stay at least 6 feet from others;
• Wear surgical face masks at all times upon return to work after day seven and face coverings away from home through day 14 after last exposure; and
• “Self-monitor for COVID-19 symptoms through Day 14 and if symptoms occur, immediately self-isolate and contact their local public health department or healthcare provider and seek testing.”

See also,

• Dancing with Corona – New Wave of California and Local Stay-at-Home Orders (December 4, 2020)
• Industry Suffocation Orders – California’s Safety Agency Now With Pandemic “Imminent Hazard” Shutdown Powers (October 2, 2020)
• Update California COVID Plan B – “Blueprint” Workplace Return Improving Conditions Statewide 0 Tier assignments as of August 31, 2020 (September 25, 2020)

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

December 18, 2020

California’s Shifting Sands Shortening of Quarantine Compliance Periods

Cal/OSHA Fines Supermarkets For COVID-19 Violations

On September 30, 2020, Cal/OSHA announced substantial fines against five Los Angeles area supermarkets for failing to update their safety measures adequately to protect their workers from COVID-19. The fined markets, all owned by Kroger Company, were Ralphs stores in Culver City, West Hollywood, Sherman Oaks, and Studio City, and a Food 4 Less in Los Angeles.

The fines range from $13,500 to $25,560. The cited violations included:

• Two stores each not reporting death of an employee from COVID-19.
• Four that allowed too many customers in their stores at the same time, thereby jeopardizing social distancing.
• Two stores not providing proper training, to include “how the virus is spread, measures to avoid infection, signs and symptoms of infection, and how to safely use cleaners and disinfectants.”
• Two stores not installing physical barriers, such as plexiglass, between employees and customers at a cheese counter and registers.

Cal/OSHA of course hopes making high profile businesses high profile violators will deter businesses statewide from cutting corners on infection limitation measures. The agency offers multi-lingual employer guidances by industry, webinars, training and other educational materials, and FAQs on such pandemic protection, recordkeeping and reporting standards.

See also:

• Suffocation Orders – California’s Safety Agency Now With Pandemic “Imminent Hazard” Shutdown Powers (October 2, 2020)
• Update California COVID Plan B – “Blueprint” Workplace Return Improving Conditions Statewide(September 25, 2020)
• Pandemic Police on Patrol – Cal/OSHA Hitting Employers Statewide for COVID-19 Non-Compliance (September 10, 2020)

For further information, please or contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

October 16, 2020

Amateur Umpires and Referees Among Expanded “Specified Occupations” Exceptions to Strict Test

Purely a product of the political process, Assembly Bill (AB) 2257– through Labor Code section 2783 – has expanded exemptions from the severe “ABC” independent contractor classification test for specific industries/licensed professionals. See, Dodging the Bullet – The Industries and Professions Not Subject to California’s New Independent Contractor Restrictions (October 9, 2020).

The “specified occupations” exemption continues to apply to accountants, architects, commercial fishers working on an American vessel, dentists, direct sales salespersons (as described in Unemployment Insurance Code section 650), engineers, insurance agents, investment advisors, lawyers, physicians, podiatrists, private investigators, psychologists, securities broker-dealers or investment advisors or their agents and representatives, surgeons and veterinarians.

The new law now applies the exemption to:

• Competition judges with specialized skills or expertise in the rules of the contest, including an amateur umpire or referee

• Individuals providing underwriting inspections, premium audits, risk management or loss control work for the insurance and financial services industries

• International exchange visitor program hires

• Landscape architects

• Manufactured housing salespersons

• Newspaper distributors and carriers

To classify someone engaged in one of the above occupations as an independent contractor, the hiring entity must establish, case-by-case, that the greater weight of the Borello factors applies.

See also:

• California’s Newest Independent Contractor Law Part 3 – “Fine Artists” and Other Clarified and Expanded Professional Services Exemptions (October 10, 2020)
• California’s Newest Independent Contractor Law Part 2 – Revised Referral Agency Exception (September 24, 2020)
• California’s Newest Independent Contractor Law Part 1 – Revamped Business-to-Business Exceptions (September 17, 2020)
• Gagging the Gigs, Plan B – California Remodels Exceptions to Its Strict Independent Contractor Test (September 11, 2020)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

October 22, 2020

Amateur Umpires and RefereesAmong Expanded “Specified Occupations” Exceptions to Strict Test

October 6, 2020

September 23, 2020

December 25, 2020

November 26, 2020

June 17, 2020

December 21, 2020

November 30, 2020

September 29, 2020

November 29, 2020

November 21, 2020

July 31, 2020

July 18, 2020

August 4, 2020

October 27, 2020

December 20, 2020

November 28, 2020

December 2, 2020

November 20, 2020

November 3, 2020

November 17, 2020

Until further notice

November 18, 2020

New Wave of California and Local Stay-at-Home Orders

Our collective unwanted pandemic “house guest” continues to spur government’s unprecedented measures toward the virus’s permanent eviction.

Beginning November 21 and to December 21, the California Department of Public Health imposed a statewide 10:00 p.m. to 5:00 a.m. curfew with certain exceptions for essential services, medical emergencies, etc.

Starting tomorrow, Saturday, December 5, and through December 26, a further Regional Stay Home Order will be in place. Any of five regions in California will be subject to the order’s strict standards if and when that region’s total available adult ICU bed capacity falls to less than 15%. The regions are:

• Northern California: Del Norte, Glenn, Humboldt, Lake, Lassen, Mendocino, Modoc, Shasta, Siskiyou, Tehama, Trinity
• Bay Area: Alameda, Contra Costa, Marin, Monterey, Napa, San Francisco, San Mateo, Santa Clara, Santa Cruz, Solano, Sonoma
• Greater Sacramento: Alpine, Amador, Butte, Colusa, El Dorado, Nevada, Placer, Plumas, Sacramento, Sierra, Sutter, Yolo, Yuba
• San Joaquin Valley: Calaveras, Fresno, Kern, Kings, Madera, Mariposa, Merced, San Benito, San Joaquin, Stanislaus, Tulare, Tuolumne
• Southern California: Imperial, Inyo, Los Angeles, Mono, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, Ventura

Once triggered, the regional order substantially limits public and commercial activity, for example including cut-backs of indoor retail and shopping center operation to 20% capacity; hotels and lodging open for critical infrastructure support only; restaurant take-out or delivery only; remote office work only except for critical infrastructure; and worship and political expression outdoors only.

We count 22 counties and one city which have rescinded their previous local orders and now follow statewide guidances: • Colusa • Calaveras • Culver City • El Dorado • Fresno • Inyo • Kern • Kings • Lake • Mono • Monterrey • Nevada • Placer • Riverside • San Benito • San Bernardino • San Luis Obispo • Santa Cruz • Solano • Stanislaus • Tehama • Tulare and • Yolo.

As of today, December 4, 2020, we list these counties and cities as continuing with “safer at home” or “shelter in place” ordinances supplemental to and stricter than Sacramento’s statewide directives:

Ventura County’s FAQs

Thanks again to our legal assistant Daniska Coronado for these continuing updates. Please use the above links and other online resources for further developments. Requirements of varying strictness continue to change frequently, municipality-by-municipality.

See also,

• New Year’s Resolutions: Start Now – Secure Employee Handbook, Forms & Policies With 2021 Updates (October 2, 2020)
• Fourth and Long – California’s Employer Playbook For a Safe Reopening (July 31, 2020)
• Cabin Fever in a Pandemic – California’s Updated Coronavirus Response (July 11, 2020)

For further information, please or contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Timothy Bowles

Daniska Coronado

December 4, 2020

New Wave of California and Local Stay-at-Home OrdersCity or County Effective DateExpiration Date Resources Alameda CountyBerkeleyContra Costa CountyHumboldt CountyImperial CountyLong BeachLos Angeles CityLos Angeles County (All unincorporated areas and cities in LA County except for Long Beach and Pasadena) Marin CountyMendocino CountyMerced CountyNapa CountyPalm SpringsPasadenaSacramento CountySan Diego CountySan Francisco City and CountySan Joaquin CountySanta Clara CountySan Mateo CountySanta Barbara CountySonoma CountySutter CountyVentura CountyYuba County

October, 2020 “REAL ID” Requirements For Air Travel Will Not Impact Employment Eligibility

As covered in Immigration Nation (August, 2019), the federal government requires all U.S. employers to verify both identity and work authorization for each employee hired within the U.S., including citizens and non-citizens, using “Form I-9, Employment Eligibility Verification” (the I-9 Form or Form).

To verify one’s identity, the employee may submit a state-issued driver’s license/ID card.

Beginning October 1, 2020, U.S. citizens and residents will have to utilize the new “REAL ID” driver’s license or ID card or a federally issued identification (e.g., U.S. passport) to board domestic flights or enter federal facilities (e.g., military bases, federal courthouses, Congress). Thus, California’s “AB 60” licenses (which only require proof of residence and not citizenship or valid green card status) will no longer enable passengers to fly commercially in the U.S.

A California applicant can obtain this new “REAL” license through the DMV with proof of identity, state residency, and valid social security number. California’s REAL ID driver’s license or ID card has an image of a bear with a star in the upper right corner. Non-REAL driver’s licenses or ID cards will instead have the phrase “Federal Limits Apply” in that location.

While only REAL ID licenses will be valid for getting to an airport boarding gate or entering a government immigration office (to name two examples), from October, 2020 employers will be able to accept either “REAL” and “non-REAL” licenses as valid identification for the I-9. See, I-9 Form FAQs.

For information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• E-Verify is Back (February, 2019)
• I-9 Form Revised Yet Again (July, 2017)

Cindy Bamforth

September 19, 2019

October, 2020 “REAL ID” Requirements For Air Travel Will Not Impact Employment Eligibility

Work Sharing Plans for Cut-back Operations

The newly streamlined Employment Development Department (EDD) Unemployment Insurance “work sharing” procedure enables employers to reduce costs in these tough pandemic times, without letting employees go.

Work share plans are not new in California, if used infrequently. Instead of the tough choice of who is to stay and who is to go, an employer facing a downturn may reduce co-worker hours across the boards or in an affected unit with each individual receiving unemployment benefits toward his/her missing work time. Such plans thus keep all those employees on payroll, preserving any applicable health and retirement benefits.

Spurred by COVID conditions, Assembly Bill (AB) 1731, effective September 30, 2020, aims to expedite this potential solution.

EDD now provides an electronic portal to enable employers to propose work sharing plans to cover “affected units” of their companies, i.e., those “plants, departments, shifts or other identifiable units,” having a minimum of two workers, and not less than 10 percent of the employer’s regular permanent work force involved . . . in each week, or in at least one week of a two-consecutive-week period, to which an approved work sharing plan applies.”

Among other requirements, the employer must also:

• Only reduce hours between ten and 60 percent;
• Notify employees in advance or explain to the EDD why it is not giving notice; and
• Certify that the plan “is in lieu of temporary or permanent layoffs, or both,” as well as how many workers the employer would have had to lay off without the plan.

The EDD must act on a plan application within ten working days of receipt and provide employers a claim packet – via online or by mail — within five days of approval.

Plans approved through September 1, 2023 will be in effect for one year from approval date unless the employer requests a shorter time period.

The EDD’s online FAQs for employees and employers supply other application and administrative requirements.

See also,

• Unemployment Goes Viral, Furlough Versus Layoff: A Distinction Without a Difference? (March 2020)
• Workplace Safety Nets, The Coronavirus Outbreak and California Unemployment Benefits (March 2020)

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

November 24, 2020

Work Sharing Plans for Cut-back Operations