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 Sager, Jill Ripke

As previously described, California has adopted AB 1867, which addresses supplemental COVID-19 paid sick leave in California. The California Department of Industrial Relations (DIR) has issued FAQs On Supplemental Paid Sick Leave for California Workers at Companies With 500 or More Employees Nationwide and for Health Care Providers and First Responders Excluded from the federal COVID-19 Related Paid Sick Leave to address this new legislation. In addition, model posters are now available for companies to post and distribute as appropriate. There is a model poster for food sector workers and one for all other covered employers (i.e., nonfood sector employees).

Companies with questions about this new legislation should contact experienced counsel.


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 Jill Ripke, Brittany Sachs, and Lauren Kulpa

We have updated and added to our frequently asked questions (FAQs) for U.S. employers relating to COVID-19 and developments in employment law based on the September 8, 2020 update to the EEOC’s What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEOC Laws. These updates also include new Q&As regarding FFCRA leave for employees with school-age children, remote working, notification to employees and customers after a COVID-19 diagnosis, and reopening the workplace.

These FAQs provide general guidance based on the current understanding of COVID-19 and federal law. Different conclusions may be reached based on different circumstances, changes to the pandemic, and/or variations in state or local law. Moreover, because the laws, regulations, and guidance pertaining to COVID-19 are constantly in flux and continue to evolve, there may be new or different information not addressed or referenced in these FAQs. Employers should contact experienced counsel for guidance specific to their business.

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 that employees may take FFCRA leave only if work would otherwise be available to them.
  • Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
  • Revise the definition of ‘healthcare provider’ to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
  • Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
  • Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.”

The update was in response to a court ruling in the Southern District of New York that vacated portions of the DOL’s Regulations Regarding FFCRA (discussed here). The revised regulations are found here and are scheduled to be published and become effective on September 16, 2020.

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 to proceed and wondered whether the DOL would update or revise its rules in light of the decision.  It now appears that the DOL intends to revise its rules. Though the substance of the change(s) is currently unknown, Perkins Coie is monitoring and will issue an update to address the rules when they become available.

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

The U.S. Equal Employment Opportunity Commission (EEOC) issued new questions and updated its guidance on September 8, 2020, covering a range of topics including keeping employee medical information confidential while employees are working remotely, whether employers can ask employees who are coming into the workplace if they have family members with COVID-19, and navigating the reasonable accommodation process. Perkins Coie will be updating its Frequently Asked Employment Questions Regarding COVID-19 this week in light of this new EEOC guidance.