Recently enacted SB 95 relaunched California’s statewide emergency paid sick leave (EPSL). Even though the bill is effective as of March 29^th, it is retroactive back to January 1, 2021. Employers with more than 25 employees are subject to the current rules. Employees (not independent contractors) are eligible for leave if they are unable to work or telework because of one of the following reasons:

The U.S. Department of Labor (DOL) is still working through opinion letters issued during the Trump Administration. Most recently, on February 19, 2021, the DOL withdrew a couple of opinions, including:

• FLSA2019-6 | Further clarification of a “retail or service establishment” for purposes of overtime exemption.
• FLSA2019-10 | Compensability of time spent in a truck’s sleeper berth. Note that to the extent that FLSA2019-10 withdrew prior opinion letters, those letters are reinstated.

Additionally, the DOL recently announced plans to withdraw the Independent Contractor Final Rule, issued by the department on issued on January 7, 2021, because it is not consistent with current case law. It also intends to rescind a current regulation on joint employer relationships under the Fair Labor Standards Act, published in the Federal Register and which took effect on March 16, 2020, in light of current litigation against the rules that vacated most of the regulations.

Action Items

In Ward v. United Airlines, Inc., the Ninth Circuit Court of Appeal stated that wage statement requirements under Labor Code § 226 are not preempted by federal law. There, airline pilot and flight attendant employees claimed they did not receive wage statements that complied with California law.

On February 4, 2021, Arizona Governor Ducey signed House Bill 2045 into law, amending the Arizona Civil Rights Act definition of the phrase “on the basis of sex” to protect workers from pregnancy or childbirth-related discrimination.  This Civil Rights Act applies to employers of fifteen or more employees.

Like other pregnancy anti-discrimination provisions, the amended Civil Rights Act prohibits employers from discriminating against employees affected by pregnancy, childbirth, or related medical conditions.  Such employees must be treated the same way as non-pregnant employees with similar limitations in their ability to work.

This amendment brings the Arizona Civil Rights Act in alignment with the federal Pregnancy Discrimination Act.  It also grants the Arizona Civil Rights Division the authority to investigate pregnancy discrimination charges filed by employees.

Action Items

On February 23, 2021, the Colorado Department of Labor and Employment (CDLE) clarified employers’ public health emergency leave (“PHEL”) obligations under the Healthy Families and Workplaces Act (HFWA).

First, employers must provide employees access to up to 80 hours of PHEL for full-time employees, and an equivalent amount to part-time employees based on the number of hours part-time employees work in a 14-day period. The rules clarified that part-time employees receive PHEL in “the greater of the number of hours the employee (a) is scheduled for work or paid leave in the 14-day period after the leave request, or (b) actually worked in the 14-day period prior to the declaration of the public health emergency or the leave request, whichever is later.”

Additionally, there was some question about whether newly hired employees would be entitled to PHEL. Because PHEL eligibility is tied to when an employee requests leave, all employees are entitled to PHEL regardless of their date of hire. Employers should review these changes immediately as they do not change existing rules, but merely clarify current requirements.

Action Items