One of the most difficult things about being laid off is the loss of medical benefits. Unemployment covers wages, but the cost to continue medical benefits can be thousands of dollars a month.

Under the recently passed American Rescue Plan Act (ARPA), 100% of premiums for COBRA or state continuation coverage must be paid by the employer beginning April 1, 2021. The benefit will last for six months maximum and has a retroactive back to before the COVID-19 outbreak began. Depending upon the employer location, if it is state continuation vs. COBRA then the retroactive period may be greater. However, at a minimum, it is an 18-month look-back, i.e. November 2019.

This new law also applies to employees who lose medical benefits when hours are reduced from full-time to part-time. Employees who did not initially elect COBRA or health continuation also get a “second bite at the apple” and can claim this new benefit.

The COVID-19 pandemic has created many unique situations for employers. The effects of the pandemic and ensuing government regulations have impacted every household differently. Some employees may struggle with childcare while others may fear exposure. The standard “playbook” for handing common employment issues has been torn up and employers are required to make decisions with very little guidance. Here are some tips for how handle unique employment situations that have arisen during the COVID-19 pandemic.

What should I do if an employee has symptoms of COVID-19?

If an employee has symptoms of COVID-19 when they arrive at work or become sick during the day, the employee should immediately be separated from other employees, customers, and visitors and sent home. A policy should be in place requiring employees who develop symptoms outside of work to notify their supervisor and stay home.

Different political views are routinely communicated in news outlets. Our country is extremely polarized. Not only do strangers openly proclaim their differing views, but families, friends, and co-workers often vocalize vastly different political ideologies and opinions. What happens when an employee expresses political views that are not consistent with the employer’s views?

In California, an employer may not terminate an employee for political activity that does not affect the employee’s job performance. California Labor Code § 1101 prevents employers from restricting an employee’s ability to participate in the political process or become a candidate for public office. In addition, this law prevents employers from directing the employees’ political activities. Consequently, an employer may not prevent employees from activity such as distributing campaign literature, attending a rally, or running for a political office. Similarly, an employer may not require employees to promote a particular candidate or platform. If the political activity at issue does not present a conflict with the business, then the activity should be acceptable. However, employees should not automatically conclude they are protected in all political activities.

Unfortunately, an employee may not always anticipate the outcome of a planned political event. An employee may set out to attend a political rally or march on the individual’s day off. Much to the person’s surprise, the rally attracts dissenters, and the event spirals out-of-control. Tempers flare and the political rally rapidly grows highly contentious. Protesters become violent. Before the event concludes, the employee is photographed breaking the windows of a car. The individual is tagged on social media, and the employee has public settings on the account making the picture visible to all. Is this activity protected?

California has begun distribution of COVID-19 vaccines in accordance with a phased administration plan. The next to be vaccinated will be individuals who are high-risk, unable to work at home, live or work in geographic areas that have been highly impacted or are most likely to spread disease to other workers or to the public.

The state has estimated that COVID-19 vaccines will be available to the general public in Spring 2021. Therefore, the time is quickly approaching for employers to make important decisions regarding the administration of the vaccine to employees.

Can employers require the COVID-19 vaccine?

This week, the Southern California Employment Law Blog interviewed Todd Martin, a Senior Human Resources Generalist for Amazon, who also has experience working for small businesses as a human resource (“HR”) specialist. He is an expert in his field and a ​SHRM Certified Professional (SHRM-CP). Mr. Martin was willing to provide insights on his strategies for managing the human element of business.

Why did you to decide to pursue a career in human resources?

I fell into HR. I graduated college with a business degree in 2008, at the height of the recession.  I couldn’t get a job and took a temp position as a recruiter for a sales company.  From there I started learning more about the HR role and, after 5 years of recruiting and onboarding, decided I wanted to do more with HR. I love the feeling of helping people and finding solutions to problems, which is a lot of what HR is and does. There is a joy in being a support for both the company I work for and its employees.

On September 30, 2020, Governor Newsom signed Senate Bill 973 requiring large employers to report certain pay and other data to the Department of Fair Employment and Housing (DFEH) by March 31, 2021 and annually thereafter. Specifically, SB 973 requires employers of 100 or more employees to report to DFEH pay and hours-worked data by job category and by sex, race, and ethnicity (hereinafter “pay data”).

The desire of the government to obtain pay information is nothing new. On January 29, 2016, President Obama announced a series of actions intended to close the gender pay equity gap, including proposed revisions to the EEO-1 form that would require the submission of detailed pay information. However, in August 2017, the Trump Administration put a halt to the implementation of this new rule.” Following a federal court ruling, the U.S. Equal Employment Opportunity Commission (EEOC) was ordered to and did collect these data for 2017 and 2018. Since then, the EEOC has stopped collecting the data.

However, there are some stark differences to the federal law. Under the Gender Recognition Act of 2017 (Senate Bill 179), California officially recognizes three genders: female, male, and nonbinary. Therefore, employers would be required to report employees’ sex according to these three categories. Employee self-identification is the preferred method of identifying sex information.

With each new year comes new responsibilities for employers. While the California legislature was less busy due to a brief COVID shutdown, there are still some key laws that every employer must know for 2021.

COVID-19 Paid Leave

In California, there are five laws regarding COVID-related leave. The first two have been in place for many years — California Family Rights Act (CFRA) and Labor Code § 246 (Sick Leave). In April 2020, the federal government passed the Families First Coronavirus Response Act (FFCRA) and Emergency Paid Sick Leave and Emergency Paid Family & Medical Leave, which expanded the Family Medical Leave Act (FMLA). The laws that were passed by the federal government applied only to employers with fewer than 500 employees and there was an exemption for small employers who could prove that expanded leave would jeopardize the business. However, in September 2020, the California legislature passed the COVID-19 Supplemental Paid Sick Leave (“CSPSL”) to make the federal laws applicable to all employers. The CSPSL also created new laws that will be addressed herein.

California recently passed two new laws related to COVID19 that every employer needs to know.

Employee Notification

Assembly Bill 685, which takes effect Jan. 1, 2021, requires California employers that receive notice of potential exposure to COVID-19 to “provide specified notifications to its employees within one business day of the notice of potential exposure.”

In September 2019, the state of California passed a law that made it more difficult for employers to classify workers as independent contractors. The law was received with much criticism because “nonsensical exemptions” for only a select professions.

The state legislature is back at it for 2020. On September 4, 2020, Governor Newsom signed AB 2257, which clarifies California’s independent contractor laws. The stringent ABC test remains the default standard, but there are now more exemptions for California business owners to learn thanks to heavy lobbying efforts. Well, not every lobbying effort created results. Gig economy companies, franchising, trucking and the motion picture and television industries all stuck out in receiving exemptions.

The new exemptions that were created by AB 2257 include:

There have been many recent news stories about people losing their jobs due to taking a political stance or being involved in protests. A former employee of Taco Bell claims he was terminated for wearing a Black Lives Matter mask at work. On the other side, a journalist was terminated by the Washington Examiner after a video went viral showing that she faked helping a local business board up windows.

This has raised the question – Can an employee be terminated for political speech or lawful activity outside of work?

Free Speech

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