Important Updates on COVID Sick Leave and Background Checks

Expiration of COVID-19 Paid Sick Leave
State and federal COVID paid time off benefits – emergency paid sick leave, expanded FMLA, and supplemental paid sick leave – have existed in some form since April 2020. Despite the ongoing pandemic, these benefits are set to expire at the end of this month on September 30. This means that California will no longer require employers of 26 or more to provide supplemental paid sick leave. It also means that the federal government will no longer provide payroll tax credits for COVID paid time off.
Even though these benefits will no longer be available, what isn’t changing are the Cal/OSHA and health department requirements to maintain a safe workplace. Unvaccinated employees who are exposed to a COVID-19 case and symptomatic employees must still be excluded from work – and now, there will be no paid time off benefit to help them make ends meet.
What is your organization’s plan starting October 1st
You might consider dusting off the laptop computers you finally collected back from employees returning to the office, so they may continue to work from home when needed. You might consider offering additional sick leave benefits (without the tax credit) so employees don’t feel compelled to hide symptoms in order to stay at work. You might even consider mandating the COVID vaccine for your employees. State Disability Insurance and Paid Family Leave benefits will be available through the EDD, and may provide partial support.
We understand these can be difficult decisions. Availability of extra sick leave has made it fairly simple to send employees home whenever there was a concern about COVID. We recommend giving employees advance notice of their options for work location and income replacement if they must be excluded from the office after Sept. 30.


COVID-19 Update: Vaccine Mandate for Employers of 100+


On September 9, President Biden announced that he would instruct the U.S. Department of Labor to issue an emergency rule requiring private employers with 100+ employees to ensure that all workers are fully vaccinated or submit to weekly COVID testing. Employers would be required to provide paid leave for the time it takes workers to get vaccinated or to recover from vaccine-related symptoms. The requirement would be implemented and enforced by OSHA. (This is in addition to an Executive Order requiring COVID vaccination for all federal employees and those working for federal contractors.)

At this time, we do not have details regarding effective dates or possible exemptions. When the Department of Labor’s emergency rule and OSHA’s regulations are published, we will provide updated information. In the meantime, you can read more information about the President’s plans for vaccinations and other COVID measures on the White House website. Please contact one of our certified Consultants if you have any specific questions for your business.


Compelling Employees to be Vaccinated Before Entering the Workplace

Just when we thought COVID-19 restrictions would ease, the Delta Variant is causing additional concerns and restrictions.  Some cities and counties have re-imposed the wearing of masks regardless of vaccination status.  Many public and private employers have mandated employees either become vaccinated or test weekly or more often for COVID-19.  Because of the cost associated with testing, some employers are considering compelling all employees to become vaccinated or lose their jobs.  The California Department of Public Health has added to the confusion by issuing an Order dated August 5, 2021 compelling the vaccination of employees who work in certain Health Care Facilities.
Privacy Rights.  Can a business require proof of vaccination without violating HIPAA or another privacy law?  Yes.  HIPAA protects the flow of information maintained by businesses in the healthcare and insurance industries.  It does not apply to most businesses.
Vaccination status is considered protected health information or PHI.  However, even a business in the healthcare industry does not violate HIPAA by asking its employee to disclose vaccination status.
General privacy laws probably do not prevent an employer from asking about vaccination status.  Typically, a person’s right of privacy must be balanced against an employer’s right to know.  Given the pandemic nature of COVID-19, the many regulations that govern businesses and the workplace, an employer’s right to know vaccination status will probably outweigh any employee’s right to maintain this information as confidential.
Equal Employment Opportunities Law.  The EEOC updated its Technical Assistance related to COVID-19 on May 28, 2021.  The Agency concluded that equal employment laws do not prevent an employer from requiring its employees to be vaccinated before entering the workplace.  Of course, this rule is subject to two exceptions for a medical accommodation or a religious objection.
Individual with a Disability.  The Americans with Disabilities Act, or ADA, as well as the California Fair Employment and Housing Act, or FEHA, require an employer to provide a reasonable accommodation for employees who, because of a disability, do not get vaccinated for COVID-19, unless the accommodation creates an undue hardship on the business.
The accommodation process includes a good-faith, interactive discussion to determine possible accommodations.  The process can include determining whether it is necessary to obtain supporting medical documentation about an employee’s disability.  The process should include a discussion of the laws applicable to the business as well as any a direct threat to the health or safety of co-workers, customers, clients or patients.
Religious Accommodation.  The law also recognizes that an employer may be required to provide a reasonable accommodation for employees who, due to a sincerely held religious belief, practice or observance, do not get vaccinated for COVID-19.
Historically, federal law has not required much of an accommodation for religious beliefs or practices.  Typically, an employer has been required to provide nothing more than a de minimis, or minimal, accommodation.   In its Technical Guidance, the EEOC says an employer “should thoroughly consider all possible reasonable accommodations ….”  An undue hardship is created if there is “more than a minimal cost or burden on the employer.”  Thus, it appears that while an employer should consider all possible accommodations, an employer is not required to make much of an accommodation in either cost or other burdens.  By the way, those other burdens might include the percentage of employees who are vaccinated, an employee’s contact with non-employees, and the direct threat to the health and safety of others.
California law under FEHA is similar to Title VII but may be more protective of the employee.  In the event of a conflict between the employee’s religious belief or observance and an employment requirement, such as COVID-19 vaccination, the employer must explore “any available reasonable alternative means of accommodating” the employee.  The employer must also make reasonable accommodations unless it creates an undue hardship meaning a “significant difficult or expense.”
Asking for Supporting Documentation.  Can an employer ask for medical documentation concerning a disability?  According to the EEOC, the answer is yes.  Most likely, that discussion should focus on the existence of a disability and the limitations imposed by that disability as opposed to the nature of the disability.
Can the employer ask about the nature or sincerity of the employee’s religious belief?  Given the ardor with which some persons avoid the COVID-19 vaccination, we expect many employees to find God and fabricate new beliefs.  Religious beliefs, which include moral or ethical codes as to what is right or wrong, need not be acceptable, logical, consistent or comprehensible to others.  Nor must the belief be espoused by a religious group.  Thus, questions related to the truth or logic of a religious or moral code would probably not be appropriate.
However, the sincerity of the belief in that religious or moral code is crucial to an employee’s claim of religious belief.  Absent proof of a sincerely held belief, the employee cannot show a conflict between religious observance or practice and the employment requirement.  Thus, presumably a discussion as to the employee’s sincerity in a religious or moral code, may take place.
Wrongful Termination.  Can an employer fire a worker for refusing to be vaccinated or to engage in periodic testing?  The answer is yes in most cases.  Typically, employees are not governed by a contract or a collective bargaining agreement that governs the termination process.  If a contract of employment does exist, it will be necessary to review the provisions to determine if cause exists.  Governmental regulations may supersede contractual provisions and require termination of employment.
In California, employment is presumed to be at-will.  This means that an employer can terminate the employment relationship for any reason, no reason, or even a wrong reason.  The only exception to at-will employment is public policy.  However, we have already discussed how requiring a vaccination does not violate any public policy.  Therefore, ending the employment relationship because an employee won’t comply with company policy, and perhaps legal requirements, does not constitute wrongful termination.
Conclusion.  COVID-19, and the government’s response to it, has made life in the business world extremely difficult.  Conditioning continued employment on vaccination or testing is legal in most circumstances.  Exceptions apply in cases of disability or religious objection.  The extent of verifying disability or religious belief, as well as when accommodation becomes an undue hardship, can become extremely complicated.
A business must consider many factors when making employment decisions related to COVID-19.  Attention to detail, as well as conferring with legal counsel about the details of your situation is critical.
Doug Larsen
Fishman, Larsen & Callister


New Rules for Healthcare Facilities


On Tuesday, July 26, the California Department of Public Health issued an order for workers in healthcare facilities. In response to the increasing COVID-19 cases in California – caused primarily the Delta variant of the COVID-19 virus – the CDPH is taking action “necessary to protect particularly vulnerable populations, and ensure a sufficient, consistent supply of workers in high-risk health care and congregate settings.” Healthcare facilities were already subject to unique mask mandates, and as a result of this order, requirements for healthcare employers are increasing.

When does this new CDPH order take effect?

This order takes effect August 9, 2021, at 12:01a, and “facilities must be in full compliance with the order by August 23, 2021.”

Who does this new CDPH order apply to?

This order applies to organizations that fall under three broad categories: acute health care and long-term care settings, high-risk congregate settings, and other health care settings. Covered under these categories are facilities from hospitals and skilled nursing facilities to clinics/doctor’s offices, dental offices, and hospice facilities.

What are healthcare facilities required to do?

Healthcare facilities are required to take action documenting employee vaccination status, providing for/enforcing employee masking, and testing employees who are not fully vaccinated on a weekly basis.

Documenting Vaccination

All healthcare facilities must verify and track the vaccine status of their employees. Vaccination verification must be accomplished through one of the following:

1. COVID-19 Vaccination Record Card, including the type of vaccine and the date of the last dose administered

2. Photo of a COVID-19 Vaccination Record Card

3. Digital photo of a COVID-19 Vaccination Record Card

4. Documentation from a health care provider

5. A digital record with QR code (including the record available at https://myvaccinerecord.cdph.ca.gov/)

Facilities must have a plan for tracking worker vaccination status. When vaccination status is unknown or unverified, workers must be treated as unvaccinated.

Masks and Respirators

All healthcare facilities must follow current CDPH masking guidance. In an order issued June 15, the CDPH required masks for everyone at healthcare facilities, regardless of vaccination status. Where applicable, healthcare facilities must also follow Cal/OSHA’s Aerosol Transmissible Diseases (ATD) standard. Cal/OSHA’s emergency COVID-19 standard also requires that respirators be provided employees upon request.

For acute health care and long-term care settings, facilities must provide respirators to those not fully vaccinated who work indoors in close proximity to patients/residents or patient/resident areas. Workers are encouraged to wear respirators in these settings. These facilities must also instruct workers on how to wear respirators and perform a seal check.

For high-risk congregate settings and other health care settings, when respirators are not required, facilities must provide those not fully vaccinated with surgical masks. Surgical masks are required indoors whenever workers are nearby others.


For acute health care and long-term care settings, workers who are not fully vaccinated must be tested at least twice weekly. For high-risk congregate settings and other health care settings, workers who are not fully vaccinated must be tested at least once weekly. These tests can be either molecular or antigen as long as they have received Emergency Use Authorization. Facilities must have a plan for tracking test results and conducting contact tracing, and they must report results to the local public health department.

Those who are exempted from the vaccine requirement (e.g., due to a medical condition) are not exempt from this testing requirement. Additionally, those who previously recovered from COVID-19 over 90 days earlier are not exempt from this testing requirement.

What now?

Healthcare employers are now faced with a difficult choice – should you pay for expensive weekly testing for employees who are not fully vaccinated, or should you require vaccination as a condition of employment? Unfortunately, this CDPH order forces us into that very choice.

If you have questions about how to communicate this to your employees or how to administer these new changes, please contact us at 559.431.8090.


Devastating News for Employers on Meal and Rest Period Premiums


The California Supreme Court determined that employers must use the employee’s regular rate of pay in calculating the premium paid to employees who were not provided a meal, rest or recovery period.  (Ferra v. Loews Hollywood Hotel, LLC, Cal.LEXIS 4877 (July 15, 2021).)  The issue came before the Court because the Legislature enacted ambiguous legislation that called for employers to pay the meal or rest period premium at the employee’s regular rate of compensation.  Prior courts determined that the regular rate of compensation meant the employee’s hourly wage.  The Supreme Court rejected this position.

This decision requiring an employer to pay the regular rate of pay for a missed meal or rest period premium will have a devastating effect on California businesses in at least three ways.

The Regular Rate of Pay is Often More than the Hourly Rate of Pay.  The only time the regular rate of pay and the regular rate of compensation are the same is when the employee does not receive any compensation other than an hourly rate of pay.

However, if an employee earns compensation in addition to an hourly wage, the regular rate of pay will always be more than the hourly wage.  This is because in calculating the regular rate of pay, an employer must include all forms of compensation.

The precise method of calculating the regular rate of pay will differ depending on the type of extra compensation earned.  Consider the employee who worked 40 hours and earns $15 plus a production bonus of $100.  The regular rate of pay is calculated at dividing total compensation by total hours.  Here, the calculation is ($15 x 40 hrs) + $100 = $700

40 = $17.50.  The premium which must be paid for a missed meal or rest period is $17.50.

The Premium Could Vary From Week to Week.  Consider the example above.  In the first week the employee earns a $100 commission.  In the subsequent week, the employee earns a $200 commission.  The regular rate of pay in the second week is $20.  This means employers will need to make constant reviews of compensation earned in each workweek to pay the employee correctly.

In addition, will the employer be required to make adjustments to prior pay periods if a bonus is not paid until the last pay period in a quarter or in the year?

The Court’s Decision is Retroactive.  The Court determined that its ruling, requiring employers to pay the regular rate of pay as the premium for missed meal and rest periods, is retroactive.  This means employees can make claims for unpaid meal and rest periods for the past four years.  Consider the employer who paid its employees a meal or rest period premium calculated at the hourly wage.  Will the employer now be required to go back and increase the amount of the premium paid based on the regular rate of pay during that workweek or pay period?

Moreover, consider the employer who does not go back and make additional payments.  Or consider the employer who paid a meal or rest period premium based on the hourly wage and the employee has since left the workplace.  Since a meal or rest period premium is considered to be a wage, that means the employer did not pay all wages due at the time of termination.  That employer could be held liable for 30 days of waiting time penalties calculated at the employee’s daily wage.


Employers should consider whether or not to provide employees with non-discretionary bonuses such as safety or production bonuses, on-call payments, benefits for meals or gym memberships, and any other similar payments.  This extra compensation creates a regular rate of pay that is higher than the hourly rate of pay.

Discretionary pay, which is determined in the sole discretion of the employer, is not part of the calculation for the regular rate of compensation.  Thus, I recommend employers use discretionary bonuses if they want to provide employees with additional pay for superior performance.

Employers should also consider reviewing their payroll to see what premium payments were made to employees in the past.  Employers need to consider whether or not they need to supplement those prior payments so that the premium equals the regular rate of pay.

I recommend every business to contact its legal counsel to consider the impact of the Court’s opinion on its workplace.  Wage and hour matters are already complex issues. The Court has now made these issues even more complex and the Court has also opened the door for more potential liability.

Doug Larsen

Fishman, Larsen & Callister