By Jill Ripke and Aimee Raimer

The DOL recently issued guidance clarifying that employer-sponsored COVID-19 incentive payments, such as hazard pay, must be included in the regular rate for calculating overtime payments.

Employers may compensate non-exempt employees in a variety of ways. The amount of overtime pay must be calculated using the employee’s regular rate of pay, which generally is calculated by dividing an employee’s total compensation for employment, less any statutory exclusions, by the total number of hours worked.

The FLSA provides an exhaustive list of payments that may be excluded from the regular rate of pay when calculating overtime payments. Recently, the DOL issued guidance clarifying that employer-paid incentive payments, including hazard pay for work performed during the COVID-19 emergency, do not meet any statutorily authorized exclusion and thus must be included in the regular rate used to compute employees’ overtime pay. This requirement applies both to private and state or local government employers who have opted to provide incentive payments to employees for working during the national health crisis.
Continue Reading DOL Issues Guidance that Employer-Sponsored COVID-19 Incentive Payments Must Be Included in the Regular Rate for Calculating Overtime Payments

By Heather Sager, Jill Ripke, and Matthew Goldberg

On September 17, 2020, as part of a trio of new COVID-19 protections for employees, California Governor Gavin Newsom signed AB 685, the text of which is available here. AB 685 requires employers to provide written notice to employees and employers of subcontractors of all potential exposure to COVID-19 within one business day of receiving notice of the potential exposure and notify the local public health agency of outbreaks. In addition, the law enhances Cal/OSHA’s enforcement powers, including the ability to shutter businesses experiencing COVID-19 outbreaks. In a small bit of relief for employers, the law does not take effect until January 1, 2021. The California Department of Industrial Relations has also published some initial FAQs, available here.
Continue Reading Heightened Cal/OSHA Enforcement Powers Accompany New COVID-19 Notice Requirement for All California Employers

By Jill Ripke and Alejandra Jimenez

On September 17, 2020, California Governor Gavin Newsom signed Senate Bill 1159 (SB-1159), which eases workers’ compensation requirements for employees who contract COVID-19 on the job.   SB 1159 extends protections similar to Governor Newsom’s Executive Order N-62-20, which expired on July 5, 2020.  SB-1159 takes effect immediately through January 1, 2023.

Under SB-1159, for purposes of workers’ compensation, a compensable workplace “injury” now includes illness or death from COVID-19 under specified circumstances. In contrast to existing law, which requires most employees to prove they suffered an injury or illness in the course of employment, an employee is presumed to have contracted COVID-19 on the job if there was an outbreak where they work.  It is thus up to the employer to rebut the “disputable presumption,” and the bill specified ways to do so.
Continue Reading SB 1159 Expands Presumption of Workers’ Compensation liability for COVID-19 Illness in California

By Heather SagerJill Ripke, Brittany Sachs and Matthew Goldberg

The City and County of San Francisco recently enacted an emergency Ordinance, the text of which is available here, effective September 11, 2020, which prevents all employers from taking adverse employment actions (e.g., firing, threatening to fire, disciplining, or in any manner discriminating) against employees and independent contractors (collectively “Workers,” as defined in the Ordinance) related to absences caused by COVID-19. The Ordinance is effective for 60 days through November 10, 2020 (unless extended) and applies to any Worker who has tested positive for COVID-19 or is isolating or quarantining, or has previously isolated or quarantined, due to COVID-19 symptoms or exposure (a “COVID-19 Absence”). The Ordinance prevents adverse actions during or within 90 days of a COVID-19 Absence.
Continue Reading New San Francisco COVID-19–Related Employment Protections Ordinance

By Heather Sager, Jill Ripke, Lauren Kulpa, Brittany Sachs, and Matthew Goldberg

On April 16, 2020, California Governor Gavin Newsom issued Executive Order N-51-20, which mandated paid COVID-19–related sick leave for food sector workers who provide services to an entity with 500 or more employees nationwide. The Executive Order was noteworthy because the eligibility for leave was not dependent on employee status—contractors were deemed eligible as well.

Last week, Governor Newsom signed Assembly Bill 1867 (AB 1867), which codified the preexisting supplemental COVID-19 paid sick leave for food sector workers and related handwashing requirements and amended enforcement provisions for violations of paid sick leave requirements.[1]
Continue Reading California Formalizes COVID-19–Related Paid Sick Leave Requirements for Large Employers

By Heather Sager, Jill Ripke, Lauren Kulpa, Brittany Sachs

On September 11, 2020, the U.S. Department of Labor (DOL) announced revisions to its implementation regulations for the Families First Coronavirus Response Act (FFCRA). As stated in the DOL’s News Release, “[t]he revisions do the following:

  • Reaffirm and provide additional explanation for the requirement

By Heather Sager, Jill Ripke, Lauren Kulpa, Brittany Sachs

On August 3, 2020, a court in the Southern District of New York vacated portions of the Department of Labor’s Regulations Regarding the Families First Coronavirus Response Act (FFCRA) (discussed here).  In the wake of that decision, employers have scrambled to understand how