Blog : COVID-19

On February 9, 2022, California Governor Gavin Newsom signed Senate Bill 114 that provides additional COVID-19 Supplemental Paid Sick Leave (SPSL 2022) under new California Labor Code Section 248.6. This new law will look familiar to employers that were required to comply with California’s 2021 COVID-19 supplemental paid sick leave law. 

However, various provisions of the SPSL 2022 law are different from the 2021 law, and thus employers will not be able to simply restart the policies and practices they had in place previously. 

This article focuses on provisions of the 2022 law that apply to employers generally, rather than provisions specifically applicable to firefighters or providers of in-home supportive and/or waiver personal care services.  

The SPSL 2022 law goes into effect on February 19, 2022.  It covers employers with more than 25 employees.  SPSL 2022 leave is retroactive to January 1, 2022, and is currently set to expire September 30, 2022. 

An employee who is unable to work or telework for reasons listed in the law is entitled to paid sick leave under the SPSL 2022 law.  Full-time employees are entitled to up to 80 hours of paid time off, split into two buckets of 40 hours. 

Employees may take paid time off from Bucket A if they make an oral or written request for any of the following reasons:  

• The employee is subject to or is caring for a family member who is subject to a government or local health department quarantine or isolation period related to COVID-19.
• The employee has been advised or is caring for a family member who has been advised by a health care provider to isolate or quarantine due to COVID-19.
• The employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19.
• The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevent the employee from being able to work or telework
• The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
• The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Bucket B provides up to 40 hours of paid time off if they make an oral or written request for leave because the employee tests positive for COVID-19 or the employee is caring for a family member who tests positive for COVID-19. 

Employers can limit paid time off related to a COVID-19 vaccine or booster shot to three days or 24 hours. This includes time spent attending an appointment and/or for COVID-19 vaccine or booster shot-related symptoms (for each vaccine/booster).  If a health care provider verifies that an individual continues to experience symptoms related to the vaccine/booster, more than three days or 24 hours of time off may be available. 

Employers are not required to pay more than $511 per day or $5,110 in the aggregate in paid sick leave. For exempt employees, the SPSL 2022 leave pay rate is calculated in the same manner wages are calculated for other forms of paid leave time.  There are two pay-rate calculation options available for non-exempt employees.  SPSL 2022 for non-exempt employees is calculated either:

• In the same manner as the regular rate of pay for the workweek in which the employee uses the paid leave; or
• By dividing the employee’s total wages (not including overtime premium pay) by the employee’s total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment.  For non-exempt employees paid by piece rate, commission or other method that uses all hours to determine regular rate of pay, total wages (not including overtime premium pay) shall be divided by all hours, to determine the correct rate for paid leave.

Employers are prohibited from requiring employees to exhaust other paid leave benefits before taking SPSL 2022, such as vacation, PTO, or California’s general paid sick leave law. The law does provide employers with the possibility of offsetting SPSL 2022 with certain supplemental paid leave provided to employees on or after January 1, 2022.  If an employer pays an employee another benefit for leave taken on or after January 1 that is payable for the law’s covered reasons and compensates employees in an amount equal to or greater than the amount of pay the law requires, an employer may count those hours toward the number of hours of SPSL 2022 it must provide an employee.

There is also an itemized wage statement requirement under the new law.  Employers are required to put the amount of used paid sick leave on employees’ paystubs.

Minami Tamaki will continue to monitor and provide insights with respect to this new law and other COVID-19 related topics.  This article is meant to provide an overview of California Supplemental Paid Leave requirements related to COVID-19, and is not a comprehensive list of all changes in the law. 

For more information on COVID-19 regulations and developments, you may contact Minami Tamaki Coronavirus (COVID-19) Task Force members Sean Tamura-Sato and Lisa Mak, online or call us at 415-788-9000.

*The content of this article is for general informational purposes only and does not constitute legal or medical advice. Information in this article may not constitute the most complete or up-to-date legal or other information. Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.

A new law making the intentional theft of wages punishable as grand theft, and thus a felony, will go into effect on January 1, 2022.

California Governor Gavin Newsom signed Assembly Bill No. 1003 (“AB 1003”) into law on September 27, 2021. AB 1003 creates California Penal Code Section 487(m), which makes the “intentional” theft of wages in an amount greater than $950 from any one employee, or $2,350 in the aggregate from two or more employees, by any employer in a 12-month period punishable as grand theft.

AB 1003 defines “theft of wages” as “the intentional deprivation of wages, as defined in Section 200 of the Labor Code, gratuities, as defined in Section 350 of the Labor Code, benefits, or other compensation, by unlawful means, with the knowledge that the wages, gratuities, benefits, or other compensation is due to the employee under the law.”

Under AB 1003, independent contractors are included under the definition of “employee” and hiring entities of independent contractors are included under the definition of “employer.”

Changing intentional wage theft to a felony may increase the number of charges brought against employers by government authorities. AB 1003 also does not prohibit employees or the California Labor Commissioner from commencing a civil action to seek remedies provided for under the California Labor Code. The new legislation also allows base wages, gratuities, and other compensation that are the subject of a prosecution to be recovered as restitution.

Employers should ensure compliance with wage and hour laws, including, but not limited to, making sure all wages are paid in a timely fashion, ensuring policies are in the place to identify payroll errors, and tracking the payout of all gratuities.

For more information on, you may contact Minami Tamaki Coronavirus (COVID-19) Task Force members Sean Tamura-Sato, Lisa Mak, or Claire Choo online or call us at 415-788-9000.

*The contents of this article is for general informational purposes only and does not constitute legal advice. Information in this article may not constitute the most complete or up-to-date legal or other information. Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.

On March 19, 2021, a new COVID-19 paid sick leave law was signed by Governor Gavin Newsom, which allows California employees to receive up to two weeks of supplemental paid sick leave, in addition to regular paid sick leave, if they need to take time off for:

• Self-isolation or self-quarantine;
• Dealing with COVID-19 symptoms;
• Appointments for a COVID-19 vaccine;
• Dealing with side effects, if any, of the COVID-19 vaccines;
• Caring for family in self-isolation or self-quarantine; and
• Care for a child whose place of care or school is not available due to COVID-19.

The new law—Senate Bill (SB) 95—is only applicable to those workers who work for businesses that employ 26 or more people and certain public entities. It does not cover rideshare drivers.

Under the new law, a full-time employee (or an employee who has worked on average 40 or more hours per week in the two weeks before leave is taken) is entitled to 80 hours of COVID-19 supplemental paid sick leave. Part-time employees with a normal weekly schedule is entitled to the total number of hours the employee is normally scheduled to work for the employer over two weeks. Part-time employees with variable hours are entitled to 14 times the average number of hours worked day for the last six months before taking leave. The employer cannot require a covered employee to use any other paid or unpaid leave, paid time off, or vacation time before, or in lieu of, the COVID-19 supplemental paid sick leave.

In 2020, the federal government passed the Families First Coronavirus Response Act (“Families First Act”) which provided leave protections and wage replacement benefits for workers during COVID-19.  Around the same time, California also enacted a COVID-19 supplemental paid sick leave which allowed employees of companies with 500 or more employees to take approximately two weeks of paid sick leave due to COVID-19. Those supplemental paid leave programs ended on December 31, 2020, which left some employees with only three days of paid sick leave and eight weeks of paid family leave per year. 

This new COVID-19 Supplemental Paid Sick Leave law covers that gap, as it is retroactive to January 1, 2021. So, if any employee has taken any unpaid leave for any of the qualifying reasons, that employee is entitled to reimbursement.  The employee should make an oral or written request to the employer and the employer must issue the reimbursement payment on or before the payday for the next pay period. The new supplemental paid sick leave law will expire on September 30, 2021.

Other Questions?

If you have questions regarding legal issues arising from the ongoing pandemic, you may contact the Minami Tamaki Coronavirus (COVID-19) Task Force online or call us at 415-788-9000.

*The contents of this article are for informational purposes only and do not constitute legal advice.  Employers and employees should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Information on this website may not constitute the most up-to-date legal or other information.  Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.  Any links contained in this article are only for the convenience of the reader, and do not constitute recommendations or endorsements of the contents of the third-party sites.

On November 19, 2020, the California Department of Industrial Relations’ (DIR) Occupational Safety and Health Standards Board adopted emergency temporary standards to protect workers from hazards related to the coronavirus (COVID-19). 

Under the new regulations, employers must have a written COVID-19 Prevention Plan that addresses: 

• Systems for communicating information to employees about COVID-19 prevention procedures, testing, symptoms and illnesses, including a system for employees to report exposures without fear of retaliation;
• Identification and evaluation of identifying workplace conditions and practices that could result in potential exposure;
• Investigating and responding to cases in the workplace, including providing notice about potential exposures and offering testing to workers who may have been exposed;
• Correcting unsafe conditions and work practices;
• Implementing procedures to ensure workers stay at least six feet apart from other people;
• Providing face coverings and ensuring they are worn;
• Adopting changes to the workplace and work schedules to reduce exposure to the virus;
• Positive COVID-19 case and illness recording requirements;
• Removal of COVID-19 exposed and positive workers from the workplace with measures to protect pay and benefits;
• Criteria for employees to return to work after recovering from COVID-19;
• Requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period); and
• Infection prevention in employer-provided housing and transportation to and from work.

The emergency standards will be in effect immediately if approved by the Office of Administrative Law in the next 10 calendar days.  The temporary standards do not apply to workers already covered by Cal/OSHA’s Aerosol Transmissible Diseases standard, which protects healthcare and other workers from airborne and droplet transmitted diseases. 

The Cal-OSHA Training Academy has made materials available at its website for companies and workers to help comply with the regulations.

For more information on COVID-19 safety requirements for California businesses, you may contact Minami Tamaki Coronavirus (COVID-19) Task Force members Sean Tamura-Sato, Lisa Mak, or Claire Choo online or call us at 415-788-9000.

*The contents of this article is for general informational purposes only and does not constitute legal advice.  Information in this article may not constitute the most complete or up-to-date legal or other information.  Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.

On September 17, California Governor Gavin Newsom signed into law two worker protection bills, AB 685 and SB 1159.  AB 685 creates new requirements for employers to notify local and state public health officials of COVID-19 cases in the workplace.  SB 1159 expands access to workers’ compensation to certain first responders, health care workers, and employees who test positive for coronavirus (COVID-19) due to an outbreak at work. 

AB 685 provides that if an employer receives notice that an individual who tested positive for COVID-19 or is subjected to an isolation order was in the workplace while considered potentially infectious, the employer must provide notice to all workers within one business day of potential exposure to COVID-19.  The notice must contain information about COVID-19 related benefits the employees are entitled to and include the employer’s disinfection and safety plan.  Employers must also notify local public health officials within 48 hours of “outbreaks” in the workplace, as defined by the State Department of Public Health.  AB 685 takes effect in January 2021.  There are exceptions to these reporting requirements for certain employees, including, but not limited to, some health care workers who work directly with COVID-19 patients. 

AB 685 also gives the California Division of Occupational Safety and Health authority to shut down businesses it believes are exposing workers to the risk of infection to the point that there is an imminent hazard to employees.

 SB 1159 creates a presumption that a covered worker’s illness or death from COVID-19 is work-related and entitles them to workers’ compensation.  Employers have the burden of rebutting this presumption by pointing to measures they have taken to reduce the potential transmission of COVID-19.  For workers in health care facilities who do not provide direct patient care (and custodial employees of health care facilities), there is no presumption if the employer can show that the employee did not come into contact with a patient who tested positive in the last 14 days. 

In addition to first responders and health care workers, the law also applies to workers who test positive for COVID-19 during an outbreak at their workplace, as defined by the bill.  SB 1159 took effect immediately upon signing. 

The rebuttable presumption under the law remains in effect until January 2023.  Governor Newsom said in an announcement that the legislation “will help California workers stay safe at work and get the support they need if they are exposed to COVID-19.”

California employers must prepare to respond to any indication that an employee has contracted COVID-19 in the workplace.  For more information about COVID-19 employer obligations, you may contact the Minami Tamaki Coronavirus (COVID-19) Task Force online or call us at 415-788-9000.

*The contents of this article is for general informational purposes only and does not constitute legal advice.  Information in this article may not constitute the most complete or up-to-date legal or other information.  Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.

Business Interruption Coverage Under All-Risk Policies

Minami Tamaki LLP’s Consumer and Employee Rights Group is investigating claims that insurance carriers are wrongfully denying business interruption insurance claims made by businesses coping with the coronavirus (COVID-19) pandemic.

Millions of businesses across the U.S. are struggling amid the economic crisis caused by coronavirus-related shutdowns. Many of these businesses have tendered claims under their business interruption coverage in their commercial property insurance policies in hopes of mitigating the losses they have experienced.

Unlike specified peril or named peril policies which only cover risks that are expressly identified in the policy, all-risk policies (also called “comprehensive” or “open peril” policies) cover everything except what is expressly excluded from the policy. Because traditional specified peril policies generally do not include viral or disease outbreaks, they will likely not provide coverage for businesses affected by the coronavirus pandemic. So, the question remains whether all-risk policies will.

Many insurance carriers, without conducting any investigation, have taken the position that claims related to COVID-19 are not covered by these all-risk policies. All-risk policies typically cover losses due to business interruption where a policyholder suffers “a direct physical loss of or damage to” the property covered under the policy. Additionally, some policies include what is called civil authority coverage which indemnifies policyholders for business interruption losses as a result of a government order that restricts access to the property. Insurance carriers have denied claims on grounds that policyholders have not suffered “a direct physical loss of or damage to” their property or that the government order did not restrict access as a direct result of “a physical loss or damage to” the property that is covered under the policy.

In early April, insurance provider Chubb Ltd. sent out a notice to policyholders on its website that “the presence of an infectious agent or communicable disease at a location where there is covered property generally will not mean that property has suffered ‘physical loss or damage’ under your policy.” Some insurance industry attorneys believe that there has been a concerted effort by insurers to dissuade the public from filing business interruption claims by sending out pre-claim notices such as Chubb’s April notice, as well as requiring property damage and denying claims based on lack of property damage.

Businesses have filed actions against their commercial property insurance carriers as their claims for losses potentially covered under their business interruption coverage have been denied. Chubb is facing a proposed class action lawsuit brought by New Jersey eatery, Benito Ristorante. Similarly, in San Francisco, Michelin-starred Thai restaurant Kin Khao has also filed suit against Oregon Mutual Insurance Company, alleging that Oregon Mutual Insurance Company is wrongfully refusing to provide business interruption coverage. As of the writing of this article, over 120 lawsuits have been filed in the past two months against insurance carriers for denial of claims for business interruption loss.

Many of these businesses claim that they are covered because government orders requiring them to cease operations have caused them to lose the use of their property. The lawsuits allege that the requirement to cease operations constitutes a physical loss of the insured property.

Contingent Business Interruption

Some policies may provide coverage for contingent business interruption losses. Contingent business interruption coverage insures against losses due to the suspension of operations of a contingent business, such as a supplier. Like the business interruption coverage, the contingent business interruption coverage requires a direct physical loss or property damage to the supplier that would have been covered if that direct physical loss or property damage was sustained by the policyholder. Again, because coverage for contingent business interruption requires a direct physical loss or damage to property, it is likely that insurance carriers will deny such claims unless there has been physical damage to the property of the contingent business.

Virus Exclusions

In 2006, the Insurance Services Offices adopted an endorsement amending coverage to exclude any losses due to virus or bacteria in response to the SARS outbreak. Policyholders who have continued to renew their policies with the same insurer over the years may discover that their policies contain virus exclusions as their claims are rejected on that basis.

However, rejection of claims based on the virus exclusion may be invalidated if the policyholder did not get notice that their coverage under the policy was changing. Under California Insurance Code section 676.2, subdivision(c)(1), if the policy has been in effect for more than 60 days or is up for renewal, a change in the conditions of coverage is not effective unless a written notice is given to the named insured at least 30 days before the effective date of the change. Thus, the insurance carrier’s failure to disclose the elimination of coverage will invalidate the exclusion.

Pre-claim notices

Any coverage analysis will depend on the specific language of the insurance contract. Some insurance carriers are sending out pre-claim notices about potential coverage for COVID-19 which includes what may be applicable portions of the policyholder’s insurance coverage provisions. These pre-claim notices are not denials of claims and are not actual determinations of coverage. As most insurers require prompt notice of any claims, policyholders must still make a claim if they would like to preserve their right to have their losses indemnified.

Other Questions?

For more information on insurance coverage for business interruption claims, contact us online or call us at 415-788-9000.

*The contents of this article are for informational purposes only and does not constitute legal advice. Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Information on this website may not constitute the most up-to-date legal or other information. Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.

Minami Tamaki LLP is investigating claims that U.S. and foreign airlines have refused to provide required refunds after canceling or significantly delaying flights because of the coronavirus (COVID-19) public health emergency. 

On April 3, 2020, the U.S. Department of Transportation (“DOT”) issued an Enforcement Notice stating that airlines remain obligated to provide prompt refunds to passengers for flights to, within, or from the United States when the carrier cancels a flight or makes a “significant schedule change” and the passenger chooses not to accept the alternative offered by the airline.  

The Enforcement Notice noted that the DOT is receiving an increasing number of complaints from consumers alleging that airlines cancelled or significantly delayed flights and then failed to provide refunds.  Consumers have reported that airlines have instead offered travel vouchers or credits for future travel. However, as the DOT noted, vouchers and credits may not be readily usable given the dramatic reduction in travel schedules due to COVID-19. 

Airlines have a longstanding obligation to provide refunds to ticketed passengers upon canceling a flight or making significant changes to a flight schedule when a passenger declines alternatives such as a voucher.  See Enhancing Airline Passenger Protections, 76 Fed. Reg. 23110-01 at 23129. 

An airline’s obligation to provide a refund arises when the cancellation is through no fault of the passenger, and does not cease because a flight disruption is outside of the carrier’s control.  See U.S. Dept. of Transportation, Aviation Consumer Protection, Refunds.

The Enforcement Notice states that it continues to view any policy or contract of carriage provision that purports to deny refunds to passengers as a violation that could subject an airline to an enforcement action.  

The DOT stated that, in light of the ongoing COVID-19 pandemic, its Aviation Enforcement Office will provide airlines an opportunity to become compliant before pursuing an enforcement action provided that the airlines 1) contact passengers provided credit or vouchers to notify them that they have the option of a refund; 2) update their refund policies and contract of carriage provisions to make clear that they provide refunds; and 3) review with their personnel the circumstances under which refunds should be made. 

If you were denied a refund after cancellation or a significant schedule change of air travel due to COVID-19 and would like more information, you may contact us online or call us at 415-788-9000.

The Coronavirus Aid, Relief and Economic Security (CARES) Act signed into law on Friday, March 27, will provide much-needed assistance to a country struggling with the impact of the coronavirus (COVID-19) pandemic. The $2 trillion economic relief plan has numerous provisions aimed at helping U.S. workers, small businesses, and industries.  The following information summarizes some key provisions of the bill; employees and employers should contact their attorney or one of our employment attorneys at Minami Tamaki for specific legal advice.  

Stimulus Checks

Individuals who earn $75,000 in adjusted gross income or less will receive direct payments of $1,200.  Married couples earning up to $150,000 will receive $2,400.  For every qualifying child age 16 or younger, the payment will be an additional $500.  

Stimulus payments phase out for earners above the income thresholds until stopping altogether for single people earning $99,000 or married people with no children earning $198,000.  

Eligibility for stimulus payments is based on 2019 income.  For individuals who have not prepared a 2019 tax return yet, their 2018 income amounts will apply. 

Unemployment Benefits

The stimulus package will increase the amount of unemployment benefits that many individuals can receive, extend the length of time that benefits can be received, and include many workers not previously eligible for unemployment insurance. 

The exact amount of unemployment benefits that workers will receive differs by state, but benefits will be expanded in an attempt to replace workers’ paychecks.  Individuals will be able to receive an extra $600 per week for up to four months on top of state unemployment benefits.  

The stimulus package also provides eligible workers with an additional 13 weeks of unemployment insurance on top of what they would normally be able to receive in their state.  The maximum benefit period in California is typically 26 weeks, so Californians will now be able to receive up to 39 weeks of unemployment benefits. 

Self-employed workers, independent contractors, freelancers and gig economy workers who have lost work due to the coronavirus pandemic are eligible for unemployment insurance under the CARES Act.  These individuals who do not regularly qualify for unemployment insurance will be able to receive 50% of the average unemployment benefit in their state, plus the $600 per week payments. 

Small Business Paycheck Protection Program

Businesses with fewer than 500 employees (including non-profit organizations) will have access to loans backed by the Small Business Administration.  These loans are eligible for forgiveness if used for covering payroll, rent, utilities, and other qualifying expenses in order to maintain operations during the coronavirus pandemic.  Accrued interest is required to be repaid. 

Small businesses can receive loans of up to $10 million with interest rates capped at 4%.  The bill provides for an expedited origination process with local lenders determining eligibility and credit worthiness. 

Small Business Economic Injury Disaster Loans

The CARES Act provides additional funding to expand the Small Business Administration’s Disaster Loan Program.  Businesses with fewer than 500 employees may apply for loans of up to $2 million to cover expenditures necessary to alleviate economic injury caused by the coronavirus pandemic. 

Disaster Loan Program applicants can also seek an emergency grant of $10,000.  Notably, businesses are not required to repay the $10,000 even if their underlying application is later denied.  

More information on the Disaster Loan Program is available here.

Tax Credits

The CARES Act also includes provisions regarding tax credits to provide relief to employers whose operations have been impacted by the coronavirus pandemic, and to incentivize employers to keep workers on staff.  Employers should consult with their tax advisors regarding these provisions of the bill.

Other Questions?

For more information on employee benefits and business solutions related to the coronavirus, contact us online or call us at 415-788-9000.

*The contents of this article are for informational purposes only and does not constitute legal advice or tax advice.  Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Readers should contact a tax professional for advice on taxation issues.  Information on this website may not constitute the most up-to-date legal or other information.  Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.