At a Glance Clarified Pay Transparency Requirements Effective Jan. 1, 2026: California employers are now able to publish a good-faith estimate of the salary or hourly wage they reasonably expect to pay a new hire at the time of hire, rather than a general range for the position. Broader Scope for Equal Pay Act Claims: SB 642 expands the definition of “wages” to include nearly all forms of compensation—such as bonuses, equity, benefits, allowances and reimbursements—potentially increasing exposure in pay equity claims and underscoring the importance of reviewing total compensation packages. Longer Statute of Limitations and Expanded Liability Window: The law extends the statute of limitations for Equal Pay Act claims to three years regardless of willfulness, with a six-year look-back period for relief, emphasizing the need for proactive compliance and documentation. Job Posting Requirements Effective January 1, 2026, SB 642, also known as the Pay Equity Enforcement Act, amends pay transparency and pay scale requirements for California employers. The changes clarify the definition of “pay scale” for job posting requirements, broaden the forms of pay considered for assessing Equal Pay Act claims, and extend the statute of limitations to bring civil actions alleging violations of pay reporting statutes. As described in our prior blog post, California requires employers to publish pay scale information on job postings. SB 642 amends California Labor Code § 432.3 to expand the definition of pay scale to a “good faith estimate of the salary or hourly wage range that the employer reasonably expects to pay for the position upon hire.” Previously, “pay scale” was defined to include the salary or wage range that employer expected to pay for the position generally. The amended definition requires disclosure of what an employer reasonably expects to pay the new hire on the date of hire as opposed to an estimate of the position in general. Equal Pay Act Claims Labor Code § 1197.5 prohibits employers from paying employees less wages for performing substantially similar work based on sex. SB 642 broadens the definition of “wages” and “wage rates” under this section. As a result, alleged violations may consider all forms of pay “including but not limited to, salary, overtime pay, bonuses, stock, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning and gasoline allowances, hotel accommodations, reimbursement for travel expenses and benefits.” The law also provides new guidance on when an Equal Pay Act violation may occur, including when: An alleged unlawful compensation decision or other practice is adopted; An individual becomes subject to an alleged unlawful compensation decision or other practice; and An individual is affected by application of an alleged unlawful compensation decision or other practice, including each time wages, benefits or other compensation is paid. SB 642 establishes a statute of limitations of three years after the last date of alleged violation to bring an Equal Pay Act claim, regardless of whether the violation is willful. Previously, the statute of limitations was two years and only three years if the violation was proven willful. The law introduces a look-back period limiting relief to a maximum of six years. Key Takeaways for Employers   The changes to job posting requirements provide relief to employers that provide a “good faith” reasonable estimate in their postings. With the changed definition of “wages” for the purposes of Equal Pay Act claims, employers may wish to review the equity of their pay packages including non-salary compensation to ensure compliance. Employers are advised to consult with counsel on compliance including when new compensation practices are adopted and changed. Polsinelli attorneys will be monitoring new developments in this area and remain prepared to assist employers.

As we start to come out of the pandemic, many businesses are deciding to embrace remote workforces on a more permanent basis for a variety of reasons, including cost saving, increased talent pool, and employee satisfaction. However, maintaining a remote workforce also presents the challenge of navigating various state and local laws that may be implicated. In general, the law of the state where the employee is physically located will govern their employment, regardless of where the company is located. Accordingly, it is critical for employers to determine which state and local employment laws apply to their workforce. Among the most critical employment laws that can vary significantly state-to-state are those relating to wage and hour issues. Although some states simply follow federal law, many have their own minimum wage laws, and businesses with remote employees in multiple states will need to ensure they are paying each employee at least the minimum wage required by the state or local jurisdiction where the employee is located. Similarly, many states have their own overtime laws, which may provide for a higher rate of overtime pay or a lower threshold for the number of hours worked before overtime is required. Additionally, certain states have nuanced meal and rest period requirements. Moreover, many states have specific laws regarding the information that must be contained on wage statements, the frequency of pay days, the timing of final pay, and the payment of accrued but unused paid time off. Employers with remote workforces should also be mindful of state and local leave requirements applicable to their employees in various jurisdictions, including family and medical leave and paid sick leave. Importantly, the applicability of these leave laws is often triggered by national employee headcounts (even if only applicable to employees in the state), whereas others are triggered by state headcounts. Even beyond these most common employment laws, numerous other state and local laws can be implicated by having a remote workforce—including those relating to state-specific notices and posters, workers’ compensation, harassment training, background checks, drug testing, and pay transparency laws. In fact, some of the more recent pay transparency laws may apply to job postings for positions open to remote employees across the country, regardless of whether the company ends up hiring an employee in a state with an applicable pay transparency law. Finally, businesses with remote employees should be aware of the tax implications of remote work. Hiring even one remote employee in a new state could require a company to file a corporate tax return in that state or register in the state to withhold payroll taxes. Businesses with remote employees need to consider and stay abreast of the different state and local laws that apply to their workforce and take steps to ensure that they are in compliance with all applicable laws. Polsinelli attorneys are prepared to assist employers with navigating various state laws and adopting compliant practices and policies.

California employers received welcome reassurance last week that they are free to require employees enter into arbitration agreements as a condition of employment. This is the result of an opinion from the Ninth Circuit last week that affirmed a trial court decision that had invalidated California Assembly Bill 51 (AB 51) before it went into effect. Among other things, AB 51 sought to make it a crime for employers to require employees to agree to arbitrate claims as a condition of employment. This law, therefore, in essence, would have only allowed employers to offer voluntary arbitration agreements to employees and not allow them to make signing an arbitration agreement a condition of employment. It was well-settled that states cannot target the enforcement of arbitration agreements for special treatment. Rather, the U.S. Supreme Court has repeatedly held that arbitration agreements must be treated like any other agreement under state law. That is, if they were lawfully entered (i.e., without fraud, duress or coercion) and are for a lawful purpose, then they must be enforced. In applying this precedent to AB 51, the Ninth Circuit found that California’s attempt to target the creation rather than the enforcement of arbitration agreements was “too cute by half.” This was not the Ninth Circuit’s first bite at this apple, however. In September 2021, this same three-judge panel ruled that parts of AB 51 were NOT pre-empted by the FAA. That panel then withdrew its opinion in August 2022, shortly after the U.S. Supreme Court’s decision in Viking River Cruises v. Moriana (holding that the FAA pre-empts state laws limiting arbitration of individual PAGA claims). In issuing its new opinion, one of the judges changed his mind. This new decision is not necessarily the end of the saga for AB 51. The California Attorney General has several options. He could accept the ruling and stop trying to resurrect AB 51. He could go back to the trial court and fight to revive the law (these decisions have only been preliminary, in other words, the courts are saying that there is a “high likelihood” that the law is pre-empted). He could appeal this decision to the entire Ninth Circuit (therefore, instead of a three-judge panel hearing the matter, it would be 29 judges!). Or he could appeal to the Supreme Court. Employers should stay tuned for what happens next. What Does This Mean For Employers in California Right Now? Employers in California with existing arbitration programs that are mandatory or permit employees to opt out may continue such programs. Companies that have opted to avoid arbitration programs altogether or only provide voluntary agreements (i.e., not make signing a condition of employment) may now want to revaluate whether the time is right to implement an arbitration program. Polsinelli attorneys will continue to monitor and review emerging laws impacting arbitration programs for California employers. For individual guidance and advice, please do not hesitate to reach out to us directly.

The California State Legislature adjourned on August 31, 2022. Following the adjournment, several bills with significant implications for employers were presented to Governor Newsom for signature or veto by September 30, 2022. Governor Newsom signed multiple bills, now laws, that California employers need to be aware of going into the new year. Below is a brief overview of the most notable updates. COVID-19 Employee Protections COVD-19 Supplemental Paid Sick Leave (AB 152): Current Covid-19 Supplemental Paid Sick Leave (“SPSL”) was set to expire on September 30, 2022. With the signing of this bill, the current COVID-19 SPSL requirements will be extended through December 31, 2022. This bill does not create a new bank of leave for employees to use but instead provides employees an additional three (3) months to use any banked SPSL. Extension of Workers’ Compensation Rebuttal Presumption for COVID-19 (AB 1751): This bill extends the current rebuttable presumption established for workers’ compensation for COVID-19 to January 1, 2024, as well as extending coverage to certain state employees who were not covered previously. Extension of COVID-19 Notice Requirements (AB 2693): Under previous notice requirements, employers were required to provide notice to individual employees who were potentially exposed to COVID-19. These requirements have been extended to January 1, 2024, but employers are now permitted to post a notice in the workplace for 15 days instead of providing individual notice. Leave Protections Mandatory Bereavement Leave (AB 1949): Effective January 1, 2023, employees with at least 30 days of active service who request bereavement leave upon the death of a covered family member must be provided with at least five (5) days of bereavement leave that does not need to be taken consecutively. Expansion of Those Included as “Designated Persons” Under CFRA and PSL (AB 1041): AB 1041 amends Government Code Section 12945.2 and Labor Code Section 245.5 to expand the California Family Rights Act (“CFRA”) and California Paid Sick Leave (“PSL”). Specifically, the class of people for whom an employee may take leave to care for is expanded to include a “designated person” identified at the time the employee requests the leave under both PSL and CFRA. With this expansion, a “designated person” means any individual related by blood or whose association with the employee is the “equivalent of a family relationship,” including a domestic partner. Other Notable Updates Creation of Fast-Food Sector Council (AB 257): The Fast Food Accountability and Standards Recovery Act will establish a Fast Food Sector Council comprised of 10 members, which will establish standards on minimum wages and other working conditions applicable to certain fast food workers. Most immediately, the Council will have the authority to raise the minimum hourly wage for workers as high as $22 next year. Although AB 257 is set to take effect January 1, 2023, a referendum has been filed seeking to block it until the matter can be put before voters. Retaliation for Emergency Conditions (SB 1044): Effective January 1, 2023, in the event of an “emergency condition,” employers are prohibited from taking or threatening adverse action against any employee who walks off the job because the employee feels unsafe. Employers also cannot prevent employees from accessing their mobile device or other communications device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to confirm their safety. Employment Discrimination and Cannabis (AB 2188): Effective January 1, 2024, AB 2188 will make it unlawful for employers to discriminate against an individual based on their use of cannabis outside of work or when an employer-required drug test finds non-psychoactive cannabis in the individual’s system (which indicates usage, not impairment). Certain workers are exempt from these protections and the new law will not prohibit drug-free workplace policies or prohibit employers from disciplining employees for the use or possession of cannabis during work hours. Expansion of Pay Data Reporting and Posting of Pay Scale in Job Postings (SB 1162): Effective January 1, 2023, California will join a growing list of states that require the disclosure of pay scales in job postings. Additionally, the existing obligation for California employers to supply pay scale information to job applicants upon request will extend to current employees. The new law also imposes certain recordkeeping requirements relating to job titles and wage rates. SB 1162 further modifies the timing and requirements for the submission of pay data reports by California employers with 100 or more employees. Finally, the law imposes various civil penalties for violations of the above-described requirements. A more detailed summary of these new job posting and pay data reporting requirements is provided here. The above is intended only as a brief overview of these new laws. For a deeper dive into details of these newly passed bills, as well as other California employment law updates, please tune into the webinar What’s on the Horizon: California Employment Law Updates for 2023 on November 1, 2022, at 11:00 a.m. – 12:00 p.m. PT by registering at: https://sites-polsinelli.vuturevx.com/121/3739/landing-pages/rsvp-blank---cle.asp?sid=5260a168-c2be-4c55-86e9-3032624c3d5c. Our team continues to monitor and review emerging laws and employers are always encouraged to reach out with any questions.

On July 8, 2022, Mayor Eric Garcetti signed the Healthcare Workers Minimum Wage Ordinance.  The ordinance imposes on covered employers a minimum wage of $25.00 for qualifying healthcare workers who work in the City of Los Angeles. Who is Covered: The ordinance applies to an employer who employs or exercises control over healthcare workers within the City of Los Angeles. An “employer” is any person, such as an individual, corporation, partnership, LP, LLP, LLC, business trust, estate, trust, association, joint venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or foreign, including a corporate officer or executive who directly or indirectly or through any other person (i.e., through a temporary service, staffing agency) employs or exercises control over the wages, hours, or working conditions of any employee. To qualify as a healthcare worker covered by the ordinance, the individual must: (1) be employed to work at or by a covered healthcare facility (as defined in the ordinance); and (2) provide patient care, healthcare services, or services supporting the provision of healthcare.  Under the first prong, a healthcare worker is employed to work at a covered healthcare facility only if that individual’s primary work assignment is physically located at one or more such facilities.  By way of example, the ordinance notes that delivery workers primarily outside a covered healthcare facility would not be healthcare workers unless they are employed by the facility. The ordinance provides several examples of healthcare workers including a clinician, professional, non-professional, nurse, certified nursing assistant, aide, technician, maintenance worker, janitorial or housekeeping staff person, groundskeeper, guard, food service worker, laundry worker, pharmacist, nonmanagerial administrative worker, and business office clerical worker.  Managers and supervisors are specifically exempt from the ordinance as healthcare workers. What is Required: On August 13, 2022, covered employers must ensure that each qualifying healthcare worker it employs, or over whom it exercises control over, is paid a minimum wage of $25.00 per hour.  On January 1, 2024, and annually afterwards, the minimum wage will increase based on the annual increase in the cost of living. The ordinance defines minimum wage as compensation for labor, whether this amount is fixed or calculated by the standard of time, task, piece, commission, or other calculation.  Minimum wage does not include bonuses, shift differentials, premium pay, reimbursement/allowances for work equipment or other expenses, meal/lodging credits, tips, gratuities, or the cost of benefits (i.e., medical, dental, retirement, or similar benefits). Employers are prohibited from funding the required minimum wage increases by: (1) reducing healthcare workers’ premium pay or shift differentials; (2) reducing healthcare workers’ vacation, healthcare, or other non-wage benefits; (3) reducing healthcare workers’ hours of work; (4) laying off healthcare workers; or (5) increasing charges to healthcare workers for parking or work-related materials or equipment.  An employer is in violation of this ordinance if the minimum wage requirements are a substantial motivating factor for the employer to take any of these prohibited actions unless the employer can prove that it would have taken the same action at the time that it did regardless of the ordinance. Effective Date: The ordinance goes into effect on August 13, 2022. One-Year Waiver: To avoid reduction in employment or work hours for healthcare workers, a court may grant an employer a one-year waiver from the minimum wage requirements. The employer, however, must demonstrate by substantial evidence that complying with the ordinance would raise substantial doubt about the employer’s ability to continue as a going concern under generally accepted accounting standards. This evidence must include documentation of the employer’s financial condition along with the condition of any parent or affiliated entity, and evidence of actual or potential direct financial impact of complying with the ordinance. Even if the court grants a one-year waiver, the employer must nevertheless comply with the requirements set forth under federal, state, or local laws, including other applicable laws regarding minimum wage. Polsinelli attorneys will be monitoring new developments in this area and remain prepared to assist employers.

On June 15, 2022, the U.S. Supreme Court issued its highly anticipated opinion in Viking River Cruises, Inc. v. Moriana, which considered whether or not claims brought under the California Private Attorneys General Act (“PAGA”) can be waived by an arbitration agreement. Existing case law in California held that PAGA claims could not be waived via an arbitration agreement because these claims are brought on behalf of the state. The defendant in Viking River Cruises challenged this California rule on the grounds that it was preempted by the Federal Arbitration Act (“FAA”). The Court’s nuanced opinion in Viking River Cruises delivers good news to California employers who use arbitration agreements with their employees insofar as the Court ruled that the FAA preempts California’s rule that PAGA actions cannot be divided into individual and representative claims. Thus, while the Court stopped short of invalidating California’s rule preventing wholesale waivers of PAGA claims via an arbitration agreement, the Court held that an enforceable arbitration agreement can mandate arbitration of individual PAGA claims. Therefore, in the case at issue, the Court ruled that the named PAGA representative’s individual PAGA claims were subject to an arbitration agreement she had signed with her employer. Although the arbitration agreement included a waiver of class, collective or representative PAGA actions, it also included a severability provision specifying that if the waiver was found invalid, such a dispute would be litigated in court, and any portion of the waiver that remained valid would be enforced in arbitration. As a result of having to arbitrate her individual PAGA claims, the Court further held that the named PAGA representative, therefore, lacked statutory standing to maintain her representative PAGA claims in court, and that these claims must be dismissed. While the precise implications of the Viking River Cruises case will likely be refined through further litigation, the Court’s opinion represents a favorable shift in the law for California employers who can now compel arbitration of an employee’s individual claims where that employee has signed an enforceable arbitration agreement that covers such claims, and seek dismissal of any related representative PAGA action for lack of standing. Additionally, following the Supreme Court’s decision in Viking River Cruises, the Ninth Circuit is set to consider a Petition for Rehearing en banc in another case, Chamber of Commerce of United States v. Bonta, which deals with the enforceability of AB 51, a new California law prohibiting mandatory arbitration agreements as a condition of employment which has been stayed pending the Court’s decision in Viking River Cruises. In light of the Viking River Cruises decision, employers will want to immediately review their arbitration agreements to evaluate whether they are effectively written to cover individual PAGA claims and avoid wholesale waivers of PAGA claims. As issues relating to California arbitration agreements continue to make their way through the courts, Polsinelli attorneys will be monitoring new developments in this area and remain prepared to assist employers with navigating these issues.

On September 15, 2021, the Ninth Circuit, in a 2-1 split decision, partially upheld a California law passed in 2019 governing the use of mandatory arbitration agreements by employers in California.  The state law, AB 51 (codified as California Labor Code section 432.6), prohibits employers in California from requiring employees to agree to arbitration as a condition of employment.  Before AB 51 went into effect on January 1, 2020, a group of employers and the U.S. Chamber of Commerce challenged the law in federal district court as preempted by the Federal Arbitration Act (“FAA”), and the federal court issued a preliminary injunction on January 31, 2020 temporarily preventing enforcement of the law. A Ninth Circuit panel reviewing the district court’s decision on appeal disagreed, vacating the preliminary injunction and holding that the provisions of AB 51 prohibiting employers in California from requiring employees to agree to arbitration as a condition of employment and from retaliating against applicants who refuse to sign an arbitration agreement are not preempted by the FAA. Curiously and somewhat confusingly, the Ninth Circuit distinguished in its analysis between an employer’s conduct before and after an employee signs an arbitration agreement.  The Court held that, while the FAA does not preempt AB 51 insofar as AB 51 regulates an employer’s pre-signing conduct (including an employer’s requiring that an employee sign an arbitration agreement as a condition of employment), the FAA does preempt AB 51’s attempt to prevent enforcement of executed arbitration agreements (even those that are mandatory and, therefore, consummated in violation of AB 51) by imposing civil and criminal penalties on employers as punishment for entering into arbitration agreements otherwise enforceable under the FAA. The upshot for California employers is that the ruling does not impact the enforceability of executed arbitration agreements, including existing mandatory arbitration agreements. However, for new employees or those who have not already signed an arbitration agreement, the Court’s decision preserves AB 51’s ban on employers requiring that such employees sign arbitration agreements as a condition of employment, and continues to prohibit employers from retaliating against an employee for refusing to do so.  Although the ruling eliminates the imposition of civil and criminal penalties in connection with an executed arbitration agreement, civil and criminal penalties could still be imposed if the employer were to terminate, refuse to hire or otherwise retaliate against an employee or applicant because they refused to sign an arbitration agreement. Following the Ninth Circuit’s decision, AB 51 will go back to the district court pending another appeal, where the case has been remanded for further proceedings.  However, the Ninth Circuit’s decision does not immediately allow for enforcement of AB 51.  The Court’s decision takes effect only once the Court issues its “mandate” relinquishing jurisdiction over the case.  Additionally, the U.S. Chamber of Commerce has been granted an extension of time to file a Petition for Rehearing en banc of the Ninth Circuit’s decision, and issuance of the Ninth Circuit’s mandate is likely to be automatically stayed if and when such a Petition is filed.  Moreover, the U.S. Chamber of Commerce may ultimately file a Petition for Certiorari to the U.S. Supreme Court, in which case the Chamber may move to stay issuance of the Ninth Circuit’s mandate pending review by the U.S. Supreme Court. Practically speaking, employers in California are left in limbo while they await final resolution of this case and a final determination as to AB 51’s constitutionality.  Employers with existing mandatory arbitration agreements in place and those who wish to continue to require their employees to enter into arbitration agreements as a condition of employment should reach out to employment counsel to discuss their various options and the associated risks.  As always, Polsinelli attorneys continue to monitor new developments relating to AB 51 and mandatory arbitration issues, and they remain prepared to assist employers with navigating these issues.

As California moved forward with reopening most of its economy on June 15, 2021, many employers in the state were left wondering whether and when the California Division of Occupational Safety and Health (“Cal/OSHA”), the state agency tasked with regulating workplaces to protect public health and safety, would update its regulations to conform to the latest guidance from the Centers for Disease Control and Prevention (“CDC”) and the California Department of Public Health (“CDPH”) for vaccinated individuals.  Although Cal/OSHA had previously voted to adopt proposed revisions to the COVID-19 emergency temporary standards (“ETS”) which had been in effect since November 30, 2020, Cal/OSHA subsequently voted to withdraw the proposed revisions and offered to make further revisions in light of updated CDPH face covering guidance and other concerns raised by Board members. Relief finally arrived on June 17, 2021, in the form of revised Cal/OSHA regulations that track the state’s latest COVID-19 public health guidance and instruct California employers regarding rapidly changing state policies on requiring masks, proof of vaccination, and physical distancing in the workplace.  Following the Cal/OSHA Board’s adoption of the revised regulations, Governor Newsom issued an executive order allowing them to take effect immediately on June 17. Among the regulations’ biggest changes are the removal of physical distancing and physical partitioning requirements in the workplace, regardless of employees’ vaccinations status, with certain limited exceptions for COVID-19 outbreaks. In addition to greatly limiting physical distancing and physical partitioning requirements in the workplace, the revised ETS do away with face covering requirements for all employees working outdoors, regardless of vaccination status, with certain exceptions for outbreaks.  Fully vaccinated employees no longer need to wear face coverings indoors, with certain exceptions for public transit, classrooms, health care and long-term care settings, correctional and detention facilities, and homeless shelters.  Vaccinated employees who wish to go mask-less in the workplace must document their vaccination status in one of two ways: (1) by either providing proof of vaccination to their employer; or (2) by self-attesting to their vaccination status.  Employers are required to record the vaccination status of any employee not wearing a face covering indoors and must keep these records confidential. Face coverings continue to be required indoors and in vehicles for unvaccinated employees, and employers are now required, upon request, to provide unvaccinated employees with approved respirators for voluntary use when those employees are working indoors or in a vehicle with others.  When there is a major outbreak of COVID-19 in the workplace, employers must offer respirators to employees regardless of vaccination status and without waiting for a request from the employee.  Employers must also offer COVID-19 testing at no cost to any symptomatic, unvaccinated employees, regardless of whether there is a known exposure to COVID-19, in addition to unvaccinated employees after an exposure, vaccinated employees after an exposure if they develop symptoms, unvaccinated employees in an outbreak, and all employees in a major outbreak. Polsinelli attorneys will continue to monitor state and federal COVID-19 relief efforts and remain prepared to assist employers with navigating these evolving issues.

On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) provided long-awaited clarification on an employer’s ability to offer incentives to their employees for receiving COVID-19 vaccinations.  This new guidance provides welcomed direction to those businesses looking to encourage workers to get vaccinated rather than adopting a mandatory vaccine policy.  A summary of the EEOC’s guidance on vaccine incentives, as well as other new updates to the EEOC’s previous vaccine-related guidance, is provided below. Vaccine Incentives The EEOC identifies the following options for employers to offer their workers incentives for vaccination under the Americans with Disabilities Act (“ADA”): Employers can offer incentives to employees to voluntarily provide documentation or other confirmation of vaccination received from an independent third party (e.g., pharmacy, personal health care provider or public clinic).  However, any information or documentation collected should be maintained confidentially under the ADA. Employers can also offer incentives to employees for voluntarily receiving a vaccine administered by the employer or its agent, so long as the incentive is “not so substantial as to be coercive.”  Although the EEOC does not go so far as to define “substantial,” it explains that “a very large incentive could make employees feel pressured to disclose protected medical information” when responding to the employer’s pre-vaccination medical screening questions. Although employers can offer an employee’s family member an opportunity to be vaccinated if certain conditions are satisfied, employers cannot require family members to be vaccinated and should not offer employees incentives for family member vaccination. Confidential Medical Information In its updated guidance, the EEOC instructs that the ADA requires an employer to maintain the confidentiality of employee medical information, including documentation or other confirmation of COVID-19 vaccination, regardless of where the employee gets vaccinated.  Accordingly, while employers can require employees provide proof of vaccination (i.e., doing so is not a “disability-related inquiry”), this information must be maintained confidentially and separate and apart from the employee’s personnel file. Reasonable Accommodations The EEOC reiterated that if an employee cannot get vaccinated because of a disability or religious belief, the employer cannot require compliance with a mandatory vaccine policy unless it can demonstrate that the individual would pose a “direct threat” to the health and safety of the employee or others in the workplace.  This determination should be based on consideration of four factors previously-identified by the EEOC, and “should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19,” including the level of community spread, statements from the CDC and/or statements from the employee’s health care provider.  The employer must also take into account the employee’s specific work environment. If the employer determines that the individual would pose a direct threat, it must then consider whether a reasonable accommodation would reduce or eliminate that threat, unless doing so would present an “undue hardship” to the employer.  The EEOC provides specific examples of potential accommodations, including wearing a face mask, social distancing, working a modified shift, making changes in the work environment (e.g., increasing ventilation, limiting contact with others), teleworking, or, as a last resort, reassigning to a vacant position in a different workspace. Finally, the EEOC cautions that employers should consider all options before denying an accommodation request, and that the “undue hardship” consideration may be impacted by the vaccination rate of the workforce and the extent of employee contact with non-employees (whose vaccination status may be unknown). Pregnancy The EEOC’s guidance also clarifies that employees who are not vaccinated because of a pregnancy may also be entitled to certain accommodations under Title VII if the employer makes modifications or exceptions for other employees “who are similar in their ability or inability to work.” These modifications may be the same as the accommodations identified above for employees based on a disability or religious belief. Emergency Use Authorization The EEOC declined to offer any insight on the legal implications of the Emergency Use Authorization for the three available COVID-19 vaccines to date, indicating that “[t]he EEOC’s jurisdiction is limited to the federal EEO laws . . . .”  The EEOC reinforced, however, that federal EEO laws do not prevent an employer from requiring employees to be vaccinated as a condition of entering the workplace, subject to the reasonable accommodation requirements under Title VII and the ADA (and other EEO considerations discussed in its guidance). Updated CDC Mask Guidance The EEOC acknowledged the recently updated guidance from the CDC exempting fully vaccinated individuals from masking requirements, and indicated that the EEOC is considering the impact of this CDC guidance on the EEOC’s own COVID-19 guidance provided to date.  Accordingly, we may see further updates to the EEOC’s technical assistance soon.  For Polsinelli’s own guidance on responding to the CDC’s updated mask guidance, see here. Polsinelli attorneys will continue to monitor and report on any updated guidance from the EEOC and are available to answer questions about vaccine policies and related incentives.

As more businesses prepare to return to the workplace, employers everywhere are evaluating whether to mandate COVID-19 vaccination as a condition of employment or simply encourage vaccination. For many employers, this decision hinges on the company’s ability to offer employees incentives to take the vaccine – including paid time off, cash, or gifts. However, offering incentives can implicate a variety of legal issues under state and federal statutes, including the potential for such incentives to violate wellness program rules. With so much legal uncertainty surrounding vaccine incentives, many employers have been reluctant to offer incentives that might otherwise encourage vaccination and expedite the process of safely returning employees to work. In early February, over 40 organizations from a wide array of industries submitted a letter to the Equal Employment Opportunity Commission (“EEOC”), requesting that the EEOC quickly provide clarity “on the extent to which employers may offer their employees incentives to vaccinate without running afoul of the Americans With Disabilities Act and other laws enforced by the EEOC.” On April 15, 2021, the EEOC finally answered the call of these businesses, announcing that it “expects to update its technical assistance about COVID-19 to address these [vaccine incentive] issues, among others, and that work is ongoing.” The EEOC did not go so far as to provide a date by which this guidance would be issued, but businesses will be eagerly awaiting. Polsinelli attorneys will continue to monitor and report on any updated guidance from the EEOC and are available to answer questions about vaccine policies and related incentives.

On March 19, 2021, California Governor Gavin Newsom signed into law S.B. 95, which requires covered California employers to provide qualifying employees with up to 80 additional hours of COVID-19-related paid sick leave through September 30, 2021, upon oral or written request by the employee.  The new state law, which goes into effect beginning March 29, 2021, applies to all California employers with more than 25 employees.  Some of the more notable features of the new state law include: Establishing a new “bank” of 80 hours of COVID-19-related supplemental paid sick leave for covered employees Expanding the qualifying reasons for COVID-19-related sick leave under state law, including the addition of a COVID-19 vaccination appointment and recovery from COVID-19 vaccination-related symptoms as qualifying reasons for leave Requiring employers to provide employees with notice of their rights to expanded COVID-19-related leave Providing special COVID-19-related leave for providers of in-home supportive services and waiver personal care services Authorizing retroactive payments to employees who took unpaid leave for qualifying COVID-19-related reasons on or after January 1, 2021 The provisions of the new state law providing for retroactive payments to employees who took qualifying leave on or after January 1, 2021 are likely to cause problems for employers, who may find it difficult to question employee requests for such retroactive payments in the absence of detailed record-keeping that memorialized these employees’ stated reasons for having taken leave.  However, employers should note that they are not required to make such retroactive payments unless and until they receive an oral or written request from a covered employee. Additionally, employers should note that SB 95 allows for employers to offset any COVID-19 related leave provided to employees on or after January 1, 2021 that was payable for the same reasons and at the same rate as provided in SB 95. As COVID-19-related sick leave and other employment-related issues regarding COVID-19 continue to evolve, Polsinelli attorneys continue to monitor new developments in this area and remain prepared to assist employers with navigating these issues.

In response to the recent Emergency Use Authorization granted by the U.S. Food and Drug Administration (“FDA”) for the COVID-19 vaccine, the Equal Employment Opportunity Commission (“EEOC”) published guidance today outlining employer compliance mandates under the Americans with Disabilities Act (“ADA”), Title VII of the 1964 Civil Rights Act (“Title VII”) and the Genetic Information Nondiscrimination Act (“GINA”). The EEOC’s guidance addresses a number of pressing questions posed by employers and employees alike regarding the vaccine. Some of the more important takeaways from today’s guidance include the following: The administration of an FDA-approved or authorized COVID-19 vaccine to employees is not a “medical examination” for purposes of the ADA, and, therefore, may generally be required by employers under federal law. Although the vaccine is not considered a “medical examination” under the ADA, pre-screening questionnaires given to employees by an employer in connection with a vaccination may implicate the ADA’s provision on disability-related inquiries. In such case, the employer would need to demonstrate that the pre-screening questions are “job related and consistent with business necessity.” If an employer requiring a COVID-19 vaccine determines that an employee who cannot be vaccinated due to a disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace (or take any other action) unless there is no other way to provide a reasonable accommodation (absent an undue hardship) that would eliminate or reduce this risk. Under the ADA, “undue hardship” is defined as “significant difficulty or expense” incurred by the employer in providing an accommodation. Employers requiring the vaccine must also provide a reasonable accommodation for an employee’s sincerely held religious belief, practice or observance that prevents the employee from receiving the vaccination unless doing so would pose an undue hardship under Title VII. Notably, under Title VII, “undue hardship” is defined as having more than a de minimis cost or burden on the employer. Title II of GINA is not implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination. However, if any pre-screening questions by the employer ask about genetic information (e.g., immune systems of family members), such inquiries could violate GINA. This new guidance sheds further light on how employers might best structure their employee policies and procedures relating to COVID-19 vaccinations in the coming months.  Employers who choose to mandate the vaccine should consider requiring vaccination from a pharmacy or other third-party health care provider to avoid the ADA implications associated with any pre-screening vaccination questions.  These employers will also want to educate and train their managers and supervisors so that they are prepared to field and appropriately respond to any requests for accommodation, and should carefully consider privacy laws surrounding the employer’s receipt and maintenance of employee medical information.  Further, employers must be prepared to consider all applicable state laws that may impact their ability to mandate COVID-19 vaccinations. Employers who are inclined to simply encourage employees to get vaccinated may want to consider certain measures to promote participation, including, but not limited to, making the vaccine convenient and accessible by providing vaccinations on-site or near the workplace, covering any cost associated with the vaccine, and/or ensuring that employees are compensated for time spent getting vaccinated. Polsinelli attorneys are prepared to assist with navigating these critical issues surrounding the arrival of the COVID-19 vaccine.

On November 3, 2020, California voters passed Proposition 22, a ballot measure that classifies certain app-based rideshare and delivery drivers as independent contractors. Under the new law, which will take effect immediately following the certification of California’s election results in mid-December, app-based drivers may be properly classified as independent contractors if the hiring entity: Does not unilaterally prescribe specific dates, times of day, or minimum number of hours during which the driver must perform services; Does not require the driver to accept any specific service request or assignment as a condition of maintaining access to the company’s application or platform; Allows drivers to perform rideshare or delivery services for any other company, including direct competitors; and Does not restrict the worker from performing any other kind of lawful work. Proposition 22 also provides certain benefits and protections to app-based drivers who are classified as independent contractors. These benefits and protections are similar to but less comprehensive than those provided to employees, including, but not limited to, a guarantee of 120% of the applicable minimum wage for “engaged time” spent on rides or deliveries, healthcare subsidies for workers driving 15 hours per week or more, certain vehicle expense reimbursements, and occupational accident insurance for on-the-job injuries. Proposition 22 also requires companies to adopt anti-discrimination and anti-harassment policies and practices, provide background checks and safety training, and enter into written agreements with their drivers that protect workers from termination for reasons other than those specified in the agreement. It remains unclear whether Proposition 22 will apply retroactively and/or whether it will render moot pending or future claims for misclassification or violation of AB 5 prior to the passage of Proposition 22. Although Proposition 22 has limited application to app-based drivers, California employers should pay close attention as courts grapple with these issues and others surrounding the recent amendments to AB 5, as these changes will no doubt continue to affect the classification landscape in California and nationally. Polsinelli attorneys will continue to monitor and analyze the evolution of these issues and remain prepared to assist clients with navigating the changes to come.

As clinical trials continue across the world for a COVID-19 vaccine, many employers are asking whether they will be able to require employees to take the vaccine when it becomes available in the United States. Like with so many questions surrounding COVID-19, the answer is not entirely clear.  In general, employers can require vaccination as a term and condition of employment, but such practice is not without limitations or always recommended. The U.S. Occupational Safety and Health Administration (“OSHA”) has taken the position that employers can require employees to take influenza vaccines, for example, but emphasizes that employees “need to be properly informed of the benefits of vaccinations.”  OSHA also explains that “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistleblower rights.” In March 2020, the Equal Employment Opportunity Commission (“EEOC”) issued COVID-19 guidance specifically addressing the issue of whether employers covered by the Americans With Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) can compel all employees to take the influenza vaccine (noting that there is not yet a COVID-19 vaccine). In responding to this question, the EEOC explained that an employee could be entitled to an exemption from a mandatory vaccination under the ADA based on a disability that prevents the employee from taking the vaccine, which would be a reasonable accommodation that the employer would be required to grant unless it would result in undue hardship to the employer.  Under the ADA, “undue hardship” is defined as “significant difficulty or expense” incurred by the employer in providing an accommodation.   Additionally, Title VII provides that once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship to the employer as defined by Title VII, a lower standard than under the ADA.  Under Title VII, employers do not need to grant religious accommodation requests that result in more than a de minimis cost to the operation of the employer’s business.  However, analogous state laws may impose stricter standards. In light of these exemptions and the risk of discrimination, the EEOC has advised that it is best practice to simply encourage employees to take the influenza vaccine rather than to mandate it.   Although we can presume that the EEOC will issue similar guidance when a COVID-19 vaccine is approved, the threat imposed by COVID-19 to the health and safety of others may make employers more inclined to require vaccination. Moreover, this threat and the necessary safety measures required of employers with unvaccinated employees may render exemptions to the COVID-19 vaccine more burdensome.  However, employers must also consider that employees may respond negatively to a vaccination requirement, and adverse reactions to the vaccine could lead to workers’ compensation claims. Accordingly, employers contemplating any policy mandating a COVID-19 vaccine should be prepared to carefully consider the threat posed to the health and safety of their employees, the risk of future claims, and employee morale.  Moreover, employers must be prepared to carefully consider the reasons for any employee requests for exemptions.

Following a series of local city ordinances aimed at closing the gap left by the Families First Coronavirus Response Act (“FFCRA”), on April 16, 2020, California Governor Gavin Newsom signed into law Executive Order N-51-20, mandating that certain Hiring Entities offer up to 80 hours of “COVID-19 Supplemental Paid Sick Leave” to essential Food Sector Workers, including farm workers, grocery workers, and food delivery workers, who perform work for or through the Hiring Entity.  Here are answers to key questions regarding the new law: Which hiring entities must offer COVID-19 Supplemental Paid Sick Leave? A covered “Hiring Entity” is defined as a private entity, including delivery network companies and transportation network companies, with 500 or more employees nationwide. In determining whether they meet the employee threshold, hiring entities must count full-time employees, part-time employees, employees on leave, temporary employees who are jointly employed by the hiring entity and another employer, day laborers supplied by a temporary placement agency, and all common employees of joint employers or employees of integrated employers.  Although independent contractors should not be counted, contractors may be entitled to leave under the new law (see below).  Finally, employees who have been laid off or furloughed and not subsequently reemployed should not be counted. Who is eligible to take COVID-19 Supplemental Paid Sick Leave? For an individual to be an eligible “Food Sector Worker” they must: Satisfy one of the following three criteria: Works in one of the industries or occupations defined in Industrial Welfare Commission (“IWC”) Wage Orders 3 (Canning, Freezing, and Preserving Industry), 8 (Industries Handling Products After Harvest), 13 (Industries Preparing Agricultural Products for Market, on the Farm) or 14 (Agricultural Occupations); or Works for a Hiring Entity that operates a “food facility,” as defined in Health & Safety Code § 113789(a)-(b) (e.g., restaurants and grocery stores); or Delivers food from a food facility for a Hiring Entity. AND Be an Essential Critical Infrastructure Worker, and therefore, exempt from Executive Order N-33-20 or other statewide stay-at-home orders. AND Leave their residence to perform work for the Hiring Entity. NOTE: The new law appears to apply not just to employees but also contractors and “gig economy” workers.  The law conspicuously avoids the use of the terms “employer” and “employee,” and specifically provides that for purposes of all applicable Labor Code sections, all Food Sector Workers shall be considered “employees” and any Hiring Entity shall be considered an “employer.” What are the qualifying reasons for taking COVID-19 Supplemental Paid Sick Leave? To take COVID-19 Supplemental Paid Sick Leave, a Food Sector Worker must experience one of the following qualifying events: The Food Sector Worker is subject to a Federal, State or local quarantine or isolation order related to COVID-19; or The Food Sector Worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or The Food Sector Worker is prohibited from working by the Hiring Entity due to health concerns related to the potential transmission of COVID-19. Hiring Entities must immediately grant leave upon the oral or written request of an eligible Food Sector Worker. How much sick leave must be provided to eligible Food Sector Workers under the new law? Full-time Food Sector Workers can take up to 80 hours of paid sick leave, including workers who worked or were scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date they take the leave; Part-time Food Sector Workers with a normal weekly schedule can take up to the total number of hours they are normally scheduled to work in a two week span; Part-time Food Sector Workers with a variable schedule can take up to 14 times the average number of hours worked each day in the six (6) months preceding the date the worker takes the leave.  If the worker has worked less than six (6) months, the calculation should be based on the entire period the individual worked for or through the Hiring Entity. COVID-19 Supplemental Paid Sick Leave should be paid out at a rate equal to the highest of the worker’s: (1) regular rate of pay for their last pay period; (2) the state minimum wage; or (3) the local minimum wage.  The total amount paid per day is capped at $511 and no more than $5,110 in the aggregate. When is the program effective? The law is effective as of April 16, 2020 and will be effective during the pendency of any statewide stay-at-home orders issued by the State Public Health Officer.  However, if a Food Sector Worker is taking COIVD-19 Supplemental Paid Sick Leave at the time of the expiration of all applicable orders, the worker may still take their full amount of leave. How does this program interact with the FFCRA and other forms of leave? It does not interact with the FFCRA. This ordinance only impacts Hiring Entities with greater than 500 workers in aggregate.  The FFCRA only applies to employers with fewer than 500 workers in aggregate.  Regardless, the two leaves would run concurrently. However, COVID-19 Supplemental Paid Sick Leave is in addition to any paid sick leave available under California’s paid sick leave law set forth in Labor Code section 246.  Moreover, a Hiring Entity may not require a Food Sector Worker to use any other paid or unpaid leave, paid time off or vacation time before the worker uses their COVID-19 Supplemental Paid Sick Leave. Is a Hiring Entity exempt if it already provides paid leave for these same reasons? A Hiring Entity is not required to provide a Food Sector Worker with COVID-19 Supplemental Paid Sick Leave if, as of April 16, 2020, the Hiring Entity provides the worker with a “supplemental benefit,” such as paid leave, for the same reasons and in an equal or greater amount as that afforded under the new law. What happens if a Hiring Entity does not comply with the new law? The new law expressly authorizes the Labor Commissioner to enforce the COVID-19 Supplemental Paid Sick Leave, leave which shall be considered “paid sick days” and enforced accordingly under Labor Code sections 246(n), 246.5(b)-(c), 247, 247.5 and 248.5.  Any Food Sector Worker denied COVID-19 Supplemental Paid Sick Leave can file a claim with the Labor Commissioner pursuant to Labor Code sections 98 or 98.7. A Food Sector Worker can also pursue any other remedies provided by state or local laws, including Business & Professions Code section 17200. Do covered entities need to provide notice of the new law? Yes, Hiring Entities must display a poster in a conspicuous place regarding the rights afforded under the new law, in compliance with Labor Code section 247.  The Labor Commissioner has made available a model notice for purposes of complying with this obligation.  If a Hiring Entity’s Food Sector Workers do not frequent a physical workplace, the Hiring Entity may disseminate notice through e-mail or other electronic means. Are there any other requirements under the new law? In addition to the paid sick leave requirements discussed above, the Executive Order expressly provides that Food Sector Workers working in any food facility shall be permitted to wash their hands every 30 minutes and additionally as needed.  This requirement is to be enforced pursuant to applicable provisions of the Retail Food Code. For questions relating to this new California COVID-19 Supplemental Paid Sick Leave, please do not hesitate to reach out to a Polsinelli attorney.

On April 7, 2020, Mayor Eric Garcetti signed into law the ordinance recently passed by the Los Angeles City Council mandating that certain large employers offer up to 80 hours of “COVID-19 Supplemental Paid Sick Leave” to employees working within the City of Los Angeles, with some notable modifications to the original ordinance.  The new law, which is effective immediately, was passed in response to the COVID-19 pandemic and to supplement the recently passed Families First Coronavirus Response Act (“FFCRA”).  Here are answers to key questions regarding the new law (which have been updated to reflect Mayor Garcetti’s modifications): Which employers must offer COVID-19 Supplemental Paid Sick Leave? Employers with (i) 500 or more employees within the City of Los Angeles; or (2) 2,000 or more employees nationally.  Some limited exceptions are noted below. Which employees are eligible for the COVID-19 Supplemental Paid Sick Leave? For an employee to be eligible, they: Must work within the geographic boundaries of the City of Los Angeles; Must have worked for the same employer from February 3, 2020 to March 4, 2020; Must experience one of the following qualifying events: A public health official or health provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19; or The employee is at elevated risk because they are least 65 years old or has an underlying health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system; or The employee needs to care for a family member who is not sick but who public health officials or health providers have required or recommended  isolate or self-quarantine; or The employee needs to care for a family member because their senior care provider, school, or childcare provider is closed.  This is only applicable to an employee who is unable to secure a “reasonable alternative caregiver.” Employers may not require a doctor’s note for the employee to utilize the supplemental leave, and must grant upon the oral or written request of an eligible employee. How much sick leave must be provided to eligible employees under the new law? Full-time employees can take up to 80 hours of paid sick leave, which shall be calculated based on an employee’s average two week pay over the period of February 3, 2020 through March 4, 2020; Part-time employees can take to up to the average number of hours they worked in a two-week span over the period of February 3, 2020 to March 4, 2020; The total amount paid per day is capped at $511 and no more than $5,110 in the aggregate; If an employee is jointly employed by two or more employers, they are only entitled to the aggregate amount of leave specified for employees of one employer. Are there any exemptions? Yes, the following individuals are exempt: Emergency Personnel, including all first responders, gang and crisis intervention workers, public health workers, emergency management personnel, emergency dispatchers, law enforcement personnel, and related contractors and others working for emergency services providers; Health care providers, including those defined by the U.S. Secretary of Labor to be capable of providing health care services under the FMLA and those working at a licensed health care facility; Employees that provide global parcel delivery services; and Employees of government agencies working within the course and scope of their public service employment. Additionally, the following employers are exempt from the new law: Employers who have a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually; New businesses that started in the City or relocated from outside the City on or after September 4, 2019 through March 4, 2020, and were not in business in the City in the 2018 tax year.  Certain construction businesses and film producers are excluded from this exemption; and Any business or organization that was closed or not operating for a period of 14 or more days due to a city official’s emergency order because of COVID-19 or provided at least 14 days of leave. A collective bargaining agreement in place on the effective date of the new law may also supersede the new mandate if it contains COVID-19 related sick leave provisions.  When the collective bargaining agreement expires or is open for renegotiation, COVID-19 Supplemental Paid Sick Leave can also be expressly waived if explicitly set forth in the agreement in clear and unambiguous terms. When is the program effective? The law is effective as of April 7, 2020 and will be effective until two calendar weeks after the expiration of the COVID-19 local emergency period. How does this program interact with the newly passed FFCRA? It does not.  This ordinance only impacts employers with greater than 500 workers in aggregate.  The FFCRA only applies to employers with fewer than 500 workers in aggregate.  Regardless, the two leaves would run concurrently. Is there any offset if our Company recently offered employees paid time off or other paid leave for these same reasons? An employer’s obligation to provide COVID-19 Supplemental Paid Sick Leave is reduced for every hour the employer allowed the employee to take leave, not including previously accrued hours, for any of the reasons listed above on or after March 4, 2020. COVID-19 Supplemental Paid Sick Leave is in addition to California or Los Angeles-mandated paid sick leave. What happens if an employer does not comply with the new law? Under the new ordinance, an employer must not retaliate against an employee for exercising their rights under the new law.  Any employee claiming a violation under this ordinance may file an action in the Superior Court of the State of California and may be awarded reinstatement, back pay and COVID-19 Supplemental Paid Sick Leave unlawfully withheld, and other equitable relief.  A court may also award reasonable attorneys’ fees to a prevailing employee. For questions relating to this new Los Angeles City law, please do not hesitate to reach out to a Polsinelli attorney.

A growing number of states, along with Puerto Rico, the Navajo Nation and a significant number of counties and municipalities, have issued mandatory “shelter in place” or “stay at home” orders. To read more about these orders, click here. Many other states, counties, and municipalities have ordered that all nonessential work stop in their areas. Although the shelter in place orders are more restrictive (significantly limiting the movement of residents and the operation of businesses in each affected jurisdiction), the essential work only orders are also incredibly disruptive to employers and employees alike. For more information about shelter in place and other orders, please see our COVID-19 resource library. While there is a distinct chance the federal government will issue similar restrictions for the entire country in the near future, at this time no federal agency has mandated the closure of businesses. There are, however, many federal agencies actively involved in managing the pandemic crisis. Particularly, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency issued guidance to state and local “critical infrastructure” workforce of multiple industries: in other words, the employees whose services are essential for certain businesses that must remain open during the COVID-19 pandemic. This guidance will advise employers along with additional jurisdictions as they develop their “red alert” orders. It will also guide all jurisdictions in interpreting their own orders as they make enforcement decisions or otherwise interpret their orders based on the circumstances as they unfold. Every business needs to prepare for the possible imposition of such orders regardless of the current situation in their state. While the shelter in place orders have some differences, they typically have the following common characteristics: Businesses not deemed “essential” are ordered to cease operations or greatly restrict operations to work that can be completed by employees remotely in their homes. Only essential employees or employees needed for minimum basic operations may leave their homes to support “essential businesses.” Residents must stay in their homes except to engage in “essential activities,” when they are qualifying employees of an essential business, or for outdoor exercise during which social isolation practices must be practiced. Travel is greatly restricted with a handful of exemptions. Both the shelter in place and nonessential business restriction orders have significant implications for all businesses, which is why we have created a devoted team to assist businesses with the following steps: Interpret the specific requirements of each applicable order. Determine if the business qualifies as an essential business. If the business qualifies as an essential business, determine the minimum basic operations of the business and which workers qualify as essential employees. Develop notices to employees regarding the essential status of the business, and written confirmation or certifications for essential employees to present when stopped by or dealing with police or public agencies charged with enforcing the order. Review staffing needs and placement options, including paid and unpaid leaves, furloughs, and layoffs. Develop effective notices to suppliers, vendors, and customers regarding the status of the business under the order. Consider possible support and assistance offered at the state and federal level to support businesses impacted by these orders. Given how quickly this situation is evolving, it is imperative that all businesses develop a clear strategy for dealing with these orders and limitations. Please call your Polsinelli attorney or email COVID19Questions@Polsinelli.com for immediate assistance. *This post was originally published on March 22, 2020

According to the Centers for Disease Control and Prevention (“CDC”), there are currently tens of thousands of reported cases of the disease (recently named “COVID-19”) in China, with a growing number of cases in various international locations. In the United States, the CDC has confirmed 14 cases and has tested a total of 426 individuals. Another 39 people infected with the disease have been repatriated to the United States. Although most of these illnesses are associated with travel from Wuhan, the United States has reported at least two instances of person-to-person spread of COVID-19. The COVID-19 outbreak presents a host of employment law concerns for U.S. employers across all industries, but in particular, those in high-risk environments (such as healthcare) and those with employees engaged in international travel. The following are some guidelines to help employers respond to the outbreak: Educate Employees For employers that might be impacted by the disease, reassure employees that management is monitoring the outbreak, including travel restrictions and guidance, and supply employees with reputable resources regarding COVID-19, its transmission, and how to prevent exposure. Employers should avoid offering medical opinions or unreliable information that might create unnecessary fear and anxiety among employees. Advise employees to check the CDC’s most recent guidance and recommendations before any international travel. Actively encourage and flexibly permit employees to stay at home if they have symptoms of acute respiratory illness, and remind employees of applicable sick leave or paid time off that might be available to them. Remind employees of applicable policies and procedures for reporting concerns and requesting leaves of absence and other accommodations. Train supervisors and managers on how to respond to such requests. To ensure consistent messaging and uniform application of company policies, appoint a dedicated individual in human resources to field and respond to questions, concerns and requests related to COVID-19. Ensure a Safe and Healthy Workplace Encourage respiratory etiquette, hand hygiene and routine cleaning of commonly touched surfaces in the workplace. Employers should also provide appropriate health and sanitation supplies around the workplace. Comply with Occupational Safe and Health Administration (“OSHA”) regulations for maintaining a safe and healthy workplace. Although all industries should follow OSHA’s recommendations and industry-specific guidance, precautionary measures are required for certain industries (such as healthcare) with a high risk of exposure to infectious disease. If an employee is confirmed to have COVID-19, inform fellow employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality about an employee’s health so as not to run afoul of the Americans with Disabilities Act (“ADA”) or similar state laws. Healthcare providers may also need to take into account any obligations under the Health Insurance Portability and Accountability Act (“HIPAA”) and consider public health reporting requirements, public safety needs, and the protection of its employees and patients. Review and Implement Policies If possible, temporarily suspend work travel to affected areas and stay abreast of current travel guidance from reputable health organizations. Requiring travel to high risk areas could expose employers to liability under OSHA or other employment laws. If an employee refuses to work or travel because of concerns related to COVID-19, carefully consider whether such concern is reasonable and consistent with current CDC guidance before insisting on travel or taking any disciplinary action. Consider implementing a temporary policy requiring employees that have traveled to affected regions (or are in direct contact with people who have traveled to affected regions) to stay at home for 14 days following their return (the suspected incubation period). This policy should be applied uniformly and not targeted at specific employees based on race, country of origin, or any other protected characteristic. Consider any request for accommodation arising from or related to COVID-19 just as the company would any other request for disability accommodation. An employee infected with COVID-19 (or even “regarded as” having the illness) could be protected under the ADA or similar state law as a “qualified individual with a disability.” Provide all necessary leaves required under state and federal law and/or company policy. A COVID-19 diagnosis will almost certainly qualify as a “serious health condition” under FMLA or equivalent state law. Once an employee has exhausted all leave, employers may still need to consider affording additional time off as a reasonable accommodation. Review any telecommuting policy and facilitate remote working where applicable. Employers should use caution in requiring employees to work from home simply because they display certain symptoms, as many of the early symptoms of COVID-19 share similarities with the common cold. If faced with telecommuting requests by employees with concerns of potential exposure, employers should assess whether such concern is reasonable before refusing this accommodation. Avoid making any medical inquiries or requiring medical examinations of employees absent a reasonable belief that an employee’s medical condition poses a “direct threat” to the workplace, as required by the ADA. “Direct threat” is defined as “[a] significant risk of substantial harm to health or safety of self or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. § 1630.2(r). In determining potential risk of COVID-19 infection, employers should rely only on guidance from reputable public health agencies and avoid making any determinations of risk based on race or country of origin. Failure to do so could violate state and/ or federal discrimination laws. To read the CDC Interim Guidance for Businesses and Employers to Plan and Respond to COVID-19, click here. Five Takeaways for Employers The impact of COVID-19 is constantly evolving and will continue to present a host of legal issues for employers. Regardless of industry or location, employers should take the following action: 1.     Closely monitor and communicate developments from U.S. public health authorities. 2.     Implement appropriate policies and procedures to respond to and manage the concerns of employees. 3.     Ensure a safe and healthy workplace in compliance with all federal and state regulations and guidelines. 4.     Protect the privacy of employees. 5.     Consult legal counsel to navigate the various OSHA and employment laws implicated by the outbreak. For more information, please contact one of the authors or your Polsinelli attorney.