Tag Archives: FMLA

Guide to Safety/Health Requirements During COVID-19 Outbreak

13 Apr

Outbreak

Apr 7 2020 – COVID-19 (Coronavirus), Health and Safety – HRWatchdog

Cal/OSHA has compiled and posted extensive guidance recommendations and requirements from many sources to assist the employer during this time.

As an employer, where can I find safety and health information about the coronavirus (COVID-19) outbreak that is affecting my ability to do business?

The state Division of Occupational Safety and Health (DOSH), commonly known as Cal/OSHA, has developed a website compiling relevant information explaining an employer’s methods and responsibilities for maintaining a safe and healthful workplace during the COVID-19 pandemic.

Since our introduction to COVID-19 in early January, the public has been increasingly inundated by various prognosticators as to what is happening and the best way to survive in the environment where we now find ourselves.

Fortunately, even when it appears that chaos is the norm, there are individuals and groups who are practical, logical and patient enough to research and develop interim solutions to mitigate to the best extent humanly possible with existing information the situation that is occurring.

Extensive Guidance

Cal/OSHA has compiled and posted extensive guidance recommendations and requirements from many sources to assist the employer during this time.

To access the guidance on requirements to protect workers from coronavirus, start at the Department of Industrial Relations website, and click on the bold banner declaring “Cal/OSHA Safety Guidance on Coronavirus.” This opens to a webpage containing a table of contents of websites for various areas that may or may not be applicable to your particular situation.

There are two references to “General Industry.” The first, Cal/OSHA Interim Guidelines for General Industry on 2019 Novel Coronavirus Disease (COVID-19), is the reader’s digest version. It details the employers covered and not covered by the Aerosol Transmissible Diseases Standard and reminds webpage visitors of other Cal/OSHA regulations — such as the Injury and Illness Prevention Program (IIPP) — that apply to all employers.

The second reference is a link to download and print a PDF brochure providing some of the information covered on the webpage.

On the “Cal/OSHA Interim Guidelines” webpage is a link to the Centers for Disease Control and Prevention (CDC), which offers considerably more detailed recommendations on its Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019.

Both the Cal/OSHA and CDC interim guideline pages contain website references that should be reviewed for information that may be relevant to your industry.

Note that the interim guidelines are subject to change.

Also, the Cal/OSHA webpage includes a link to the daily update page for the California Department of Public Health.

Model Policies and Forms for the New Emergency Paid Sick and Paid FMLA Leave? Here are the Details

FMLA

By Jeff Nowak on April 9, 2020  Littler Law Firm

Under the Families First Coronavirus Act (FFCRA), employers with fewer than 500 employees are required to provide paid sick leave (EPSL) and paid FMLA leave (FMLA+) for certain reasons related to the Coronavirus pandemic. The law went into effect April 1 and its obligations continue through December 31, 2020.

Employers need policies and forms to comply with this new law.

We now have these policies and forms ready for you.

Why Do You Need a New Policy and Forms to Comply with this New Law?

This new law is fraught with compliance issues for employers.  Take, for instance, these risky scenarios for employers that do not document an employee’s leave request:

  • Your employee, Johnny, does not have symptoms of COVID-19 but insists that he needs to take off work to avoid any exposure. Is he eligible to take EPSL? If you and Johnny later dispute the reason for his need for leave, do you have a leave request form from Johnny to back up your story? Nope.
  • One of your employees, Betty, sought FMLA+ for a COVID-19 related reason, but a dispute later arises over whether you improperly denied her intermittent leave to care for her child whose school was closed. You recall that she requested continuous leave, but you have nothing in writing confirming that fact.
  • You require your employee, Gnarls, to exhaust his employer-provided PTO at the same time he is taking EPSL. After the fact, he claims that he did not give you approval to burn his accrued paid leave at the same time he was taking EPSL .  You recall him telling you to apply his accrued leave, but you have nothing in writing to confirm. Is this a violation of the law?

This hastily-drafted law is a mess, and it undoubtedly will create liability for employers that fail to document the employee’s request for EPSL or FMLA+.  Employer compliance is made even more difficult because the Department of Labor has made clear that it will not be publishing model policy language or model forms for employers to use for EPSL or FMLA+.

This creates significant compliance risks.

Employers undoubtedly want to make their employees aware not only of their leave entitlement under this new law, but also the expectations for requesting and taking EPSL or FMLA+. Additionally, it also is critical that employers obtain in writing their employees’ request for leave, including whether they are requesting intermittent leave (and why), whether they want other forms of paid leave to run instead of or concurrently with EPSL and FMLA+, among other important issues.

Wage and Hour Considerations for Remote Workers

Apr 10 2020 – COVID-19 (Coronavirus), Exempt/Nonexempt – Bianca Saad

Wage

Pet co-workers have fewer wage and hour obligations.

How do an employer’s pay obligations differ when an hourly/nonexempt employee is working remotely from home?

It’s important to keep in mind that when having a nonexempt employee work remotely, your obligations under California’s wage and hour laws remain the same, and you need to ensure you have measures in place to maintain accurate records of the employees’ hours worked.

In addition to accurately tracking all hours worked by your nonexempt remote employees, it’s critical to ensure they take required meal and rest breaks, get paid for any overtime hours and are not engaging in “off-the-clock” work (there is no such thing in California).

Establishing a remote work/telecommuting policy is a great way to communicate your expectations to your remote employees, particularly when it comes to keeping an accurate record of their hours worked, including overtime, as well as taking their appropriate meal and rest breaks.

In addition to having a telecommuting policy, you may choose to have your remote employees sign a telecommuting agreement, acknowledging their work schedule and other parameters within the telecommuting policy itself, such as whether they need approval to work overtime.

Accurate Timekeeping

Many employers already use some type of software that allows them to accurately record hours worked by an employee, and this should be no different for an employee working remotely.

By making sure your remote employees have access to your software or timekeeping system on their remote devices, you can accurately track and monitor your remote employees’ daily and weekly hours worked.

Meal and Rest Breaks

In California, nonexempt employees’ uninterrupted meal break of at least 30 minutes must begin no later than 4 hours and 59 minutes into their shift. Additionally, a nonexempt employee whose total daily work time is at least 3.5 hours must be permitted a rest break of at least 10 “net” minutes for every four hours worked, or “major fraction thereof.”

Because remote employees aren’t supervised in the same way that an on-site employee is, there can be some added challenges to monitoring breaks; however, having a clearly written meal and rest break policy can help combat those challenges.

In addition to your standard meal and rest break policy, your telecommuting policy can reiterate that employees are expected to take their uninterrupted, off-duty meal and rest breaks.

Overtime

In addition to ensuring that your remote employees take their meal and rest breaks, you also need to track and pay for any overtime hours worked.

As a reminder, California law requires all overtime hours to be paid (1.5 times the employee’s regular rate of pay for all hours worked beyond 8 hours in a workday or 40 hours in a work week), even if that time was not approved.

Having a clearly written telecommuting policy and agreement in place can help you to manage your remote employees’ work schedules and expectations regarding overtime.

Business Expenses Reimbursements

Employers must reimburse employees (whether nonexempt or exempt) for all “necessary expenditures or losses incurred” in the performance of their job duties (Labor Code Section 2802). This could include an employee’s personal cell phone, computer equipment and other services and/or supplies required for a remote employee to work.

When looking at whether an employee is entitled to reimbursement, the question will be whether it is “necessarily incurred.”

A clearly written telecommuting policy can help establish guidelines surrounding which expenses are reimbursable, as well as provide a method for employees to submit for reimbursement. Another approach might be to provide all necessary equipment for a remote worker, such as computers/laptops, printers and a phone — which could eliminate or reduce an employee’s need to use personal devices.

Bianca Saad, Employment Law Subject Matter Expert, CalChamber

Don’t Let FMLA Leave Cause You Problems

5 May

Employers with 50 or more employees, (for 20 workweeks in the current calendar year or the preceding calendar year) are covered by the Federal Family Medical Leave Act – and in California are also regulated by the state’s California Family Rights Act. Both laws require eligible employees to be given time off under certain circumstances without pay for their own illness, caring for family members, and certain other situations. While the leave generally is for up to 12 weeks maximum within a one year period, the employer is obligated to continue the employee’s participation in group health insurance on the same basis as if work had continued..
Recently employers have experienced problems when they felt employees were out on leave for too long a period of time, or the employee was absent without notification to the employer.
An employer can protect themselves from many of these difficulties, but only if:
1. The required FMLA poster is displayed, and the poster was recently updated by the US Department of Labor effective March 8, 2013.
2. Notice about FMLA and requirements of the employer are provided to employees, most effectively done by a well written section in an Employee Handbook
3. When an employee requests time off – notification of approval or denial of FMLA leave and FMLA rights must be provided. This is an area many employers fail to observe.
4. You also should have a “no call/no show = voluntary quit” policy so employees who do not follow procedures and call in on time when they are going to be absent from work are treated as having quit their job. Courts have upheld this rule,
A copy of the latest FMLA poster, as well as model forms for the required notices are available at the US Department of Labor’s website: http://www.dol.gov/whd/fmla