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California Passes COVID-19 Supplemental Paid Sick Leave Law

On September 9, California Governor Newsom signed a bill that establishes COVID-19 supplemental paid sick leave (“COVID-19 PSL”) for California workers generally not covered by the federal Families First Coronavirus Response Act (“FFCRA”).

Important Dates

Employers are required to begin providing COVID-19 PSL by September 19.

Employers must also post a notice in their workplace by September 19.  If employees are not physically present in the workplace, the employer may disseminate the notice electronically.

Starting in the first pay period after September 9, employers must provide notice in a wage statement (or a separate writing provided on pay day) of an employee’s available COVID-19 PSL each pay period.

The requirement to provide COVID-19 PSL expires on December 31, 2020 or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA.

Covered Employers & Employees

California’s new law applies to private employers with 500 or more employees in the United States.  It also applies to any public or private entity that employs health care providers or emergency responders and that has elected to exclude such employees from emergency paid sick leave under the FFCRA.

Workers are entitled to COVID-19 PSL only if they are (1) employed by a covered employer AND (2) leave home to perform work for their employer.

Reasons for Leave

Employees are entitled to COVID-19 PSL when they are unable to work because they:

  • are subject to a federal, state, or local quarantine or isolation order related

UK HR Solutions: How to deal with sickness absence

Welcome to the next post in our weekly series of hands-on guidance for UK HR professionals. In this series we look at common HR issues that you’ll encounter in the workplace and give you practical guidance on how to deal with them. Over the course of the series we’re covering a variety of topics, such as how to handle grievances, disciplinaries, suspension, performance management and much more besides.

This week we look at how to deal with sickness absence.

Click here to read our sickness absence guidance note.

US COVID-19: DOL Issues Revised FFCRA Regulations In Response to NY Decision

In August, we informed you of a decision by a federal district court in New York (the “Court”) that invalidated four key provisions of the federal Department of Labor’s (“DOL”) regulations interpreting the Families First Coronavirus Response Act (“FFCRA”).  On September 11, 2020, the DOL acknowledged the nationwide impact of the Court’s ruling, and issued much-anticipated revised regulations addressing the four provisions.  The new regulations will be formally published, and become effective, on September 16, 2020.

As described in detail below, in the new regulations, the DOL: (a) affirmed the “work-availability” requirement; (b) affirmed the “employer consent” requirement for intermittent leave; (c) narrowed the scope of the “health care provider” definition for purposes of the available exemption from the leave entitlement; and (d) clarified the timing of notice and documentation requirements.  The DOL also provided new and revised Q&As on these subjects (see Q&A #s 16, 21, 22, 56, and 98-103).

Work-Availability

In the revised regulations, the DOL held firm to the requirement that employees are only entitled to leave if they are unable to work “because of” a COVID-19 qualifying reason.  The DOL addressed the Court’s concerns with consistency by clarifying that this work-availability requirement applies to all qualifying reasons for FFCRA leave.  Thus, according to the DOL:

  • FFCRA leave (both Paid Sick Leave for any qualifying reason and Expanded FMLA leave) may only be taken if the employee has work from which to take leave. In other words, an employee cannot take FFCRA leave if the employer would

UK HR Solutions: Performance Management FAQs

Welcome to the next post in our weekly series of hands-on guidance for UK HR professionals. In this series we look at common HR issues that you’ll encounter in the workplace and give you practical guidance on how to deal with them. Over the course of the series we’re covering a variety of topics, such as how to handle grievances, disciplinaries, suspension, sickness absence and much more besides.

This week we continue our look at performance management with a set of FAQs that UK employers commonly ask.

Click here to read our Performance Management FAQs.

UK HR Solutions: Managing performance issues

Welcome to the next post in our weekly series of hands-on guidance for UK HR professionals. In this series we look at common HR issues that you’ll encounter in the workplace and give you practical guidance on how to deal with them. Over the course of the series we’re covering a variety of topics, such as how to handle grievances, disciplinaries, suspension, sickness absence and much more besides.

This week we look at managing performance issues.

Click here to read our guidance note on what to do when a performance issue arises.

This article was co-written with Paralegal Peter Summerfield.

U.S. COVID-19: DOL Issues FFCRA Guidance Regarding School Reopening Plans

Last week, the Department of Labor (“DOL”) published guidance (Q&A #s 98-100) on the impact of various school reopening plans on employees’ entitlement to leave under the Families First Coronavirus Response Act (“FFCRA”).  As anticipated, leave rights depend on the specific circumstances, with the key being whether the school is “closed” (not available for the child to attend in person):

  • No In-Person Program: If the school is not offering any in-person instruction and instead is providing only remote learning (aka virtual learning; e-learning; distance learning) to students, then an employee will have a qualifying reason for leave.
  • Hybrid Program: If the school is providing a hybrid program pursuant to which students are receiving in-person instruction on some days and doing remote learning on other days (such as alternating days or weeks in the classroom vs. at-home), then an employee will have a qualifying reason for leave but only on the days when in-person instruction is not available to their child.
  • Choice Between In-Person or Remote Program: If the school provides families with a choice between an in-person program or a remote program, and the employee chooses the remote option, the employee will not have a qualifying reason for leave.  This is true regardless of the reason for the employee’s choice (e.g., choosing remote learning due to fear of exposure to COVID will not provide a qualifying reason for leave when in-person learning is available).

Importantly, even when the school is closed, an employee will still be

UK HR Solutions: Suspending for disciplinary matters

Welcome to the next post in our weekly series of hands-on guidance for UK HR professionals. In this series we look at common HR issues that you’ll encounter in the workplace and give you practical guidance on how to deal with them. Over the course of the series we’re covering a variety of topics, such as how to handle grievances, disciplinaries, poor performance, sickness absence and much more besides.

This week we look at suspending employees in relation to potential disciplinary matters. Suspending someone should not be an automatic response to allegations of misconduct, but a carefully considered decision. The consequences of getting this wrong can be considerable.

Read our FAQs on when and how to suspend an employee for disciplinary matters

UK HR Solutions: Managing disciplinary issues

Welcome to the second post in our new weekly series of hands-on guidance for UK HR professionals. In this series we look at common HR issues that you’ll encounter in the workplace and give you practical guidance on how to deal with them. Over the course of the series we’re covering a variety of topics, such as how to handle grievances, suspensions, poor performance, sickness absence and much more besides.

This week we look at disciplinaries.

Click here to read our step by step guide on what to do when a disciplinary issue arises.

UK HR Solutions: Grievances and how to handle them

Welcome to the first in our new weekly series of hands-on guidance for UK HR professionals. In this series we look at common HR issues that you’ll encounter in the workplace and give you practical guidance on how to deal with them. In the forthcoming weeks we will cover a variety of topics, such as how to manage disciplinaries, suspensions, poor performance, sickness absence and much more besides.

In our first edition, we are looking at grievances. The way in which an employer handles a grievance has long term employee relations implications, in addition to potential legal liabilities.

Click here to read our step by step guide to grievances and how to handle them.

UK HR Two Minute Monthly: disability discrimination; TUPE; employment status

August 11, 2020

Categories

As we move towards a ‘new normal’, our August 2020 update outlines some of the key non-COVID related employment law developments in the UK over the last month. It includes a TUPE-related ECJ judgment which takes a different approach to our usual domestic position, as well as cases on disability discrimination and agency workers. We also provide an update of other recent points of interest. You can find our latest UK COVID-19 employment law updates for the UK here.

Unfair dismissal of long-term sick employee does not automatically mean dismissal is disability discrimination

The Employment Appeal Tribunal (‘EAT’) has held that an employment tribunal erred in focusing on an employer’s decision-making process when considering whether a dismissal arising from disability was proportionate.

The employee was dismissed for disability-related sickness absence. The employment tribunal found that she had been unfairly dismissed. It also upheld the employee’s claim that her dismissal constituted discrimination arising from disability, rejecting the employer’s objective justification defence to the disability discrimination claim. It held that the employer’s aims of protecting scarce public resources and reducing the impact of the employee’s absence on her colleagues were legitimate but that it was not justified because it was not a proportionate means of achieving either aim.

The EAT upheld the employer’s appeal against the finding of discrimination. Having accepted that the employer had legitimate aims for the dismissal, a balancing exercise between the employer’s needs and the discriminatory effect of the dismissal should have been carried out. The fact

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