ADA Lawsuits Attacking Website Accessibility Mount

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Over the past few months, we have seen an increase in pre-litigation letters and lawsuits charging Americans with Disabilities Act (“ADA”) violations against commercial websites. These notice and demand letters and lawsuits allege that businesses’ websites violate the federal ADA and similar state laws because they do not give full and equal access to individuals who have disabilities (including blindness, visual impairment and hearing impairment). ADA lawsuits have been filed in federal and state courts throughout the country. No state is immune from such suits, and no business is too small to receive such ADA demands and claims.

One of the factors undoubtedly is the rise of law firms, and consortiums of firms, that specialize in filing such suits. The law firms often work with repeat-plaintiffs with disabilities, much like law firms that specialize in Proposition 65 private enforcement claims in California who work with repeat plaintiffs who purchase products that are then made the subject of notices of violations and lawsuits. The subjects of ADA and Prop 65 laws differ greatly, but the common element is that liability can be fairly easy to establish under both ADA and Prop 65, and both statutes allow awards of attorneys’ fees to the law firms that can far exceed the damages awarded. Some of the law firms that commonly send ADA letters making demands and file lawsuits about website accessibility problems include Pacific Trial Attorneys (Newport Beach, CA), Nye, Stirling, Hale & Miller (Santa Barbara, CA), The Sweet Law Firm (Pittsburgh, PA), Block & Leviton, LLP (Boston, MA), and Carlson Lynch (Chicago, IL).

While there is no universally mandated standard, many large businesses and state and federal agencies follow WCAG 2.1, Level AA standards, which were created by the Web Accessibility Initiative, an internationally recognized organization. Generally, WCAG 2.1 Level AA compliance requires that websites have text components for all images and videos such that assisted technology software may read this content to users. Among other requirements, the standards also require that websites have proper contrast between background images and overlapping font so that visually impaired individuals can use assisting software to be able to read and navigate the website.

To minimize the risk of receiving an ADA violation letter or being sued, we recommend you take at least the following steps:

  1. Request that your digital team ensure and confirm that your website conforms with WCAG standards and, if so, what version/level as there were several earlier WCAG standards prior to the current WCAG version 2.1. To reduce the chances of such claims being made against your company, request your digital team to make your website WCAG 2.1 Level AA compliant and keep it that way until a more updated standard comes into general use.
  2. Add a footer entitled “Accessibility” or “Accessibility Statement” to your website. The footer should preferably appear on the homepage and each webpage, preferably near your “Privacy Policy” and “Terms of Service” footers.
  3. Add a webpage that is linked to the Accessibility Statement footer (e.g. https://www.conklelaw.com/accessibility-statement). This webpage should include an Accessibility Statement discussing your commitment to ensuring accessibility to all and providing contact information to report accessibility barriers and assistance with purchasing products or navigating the website. If you want help formulating your Accessibility Statement, seek qualified counsel to assist you.
  4. Instruct your digital team to periodically review the website as it is updated to ensure there are no access barriers, that all newly uploaded content (including temporary pop-up offers, sale announcements, discount codes, rebates, etc.) complies with WCAG standards, and that all customer service representatives are trained to handle website accessibility inquiries. This training should include advising a responsible person in your digital team of any reported accessibility barriers, and being specifically trained to help disabled customers place orders.

Even if you have not taken these steps before receiving a demand letter or lawsuit from one of the ADA plaintiffs’ lawyers, it’s possible to reduce liability by taking prompt steps. If you received such a website accessibility notice of violation or legal complaint, contact qualified counsel promptly to assist in minimizing the impact and avoid similar future claims. All of the ADA violation matters that Conkle, Kremer & Engel attorneys have defended have been resolved fairly quickly with modest settlements. Others accused of website ADA violations have not been so fortunate, with some reporting having paid tens of thousands of dollars. CK&E attorneys are well qualified to help with all types of ADA and accessibility compliance concerns, whether for websites or physical facilities.

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2019 Was Another Lucrative Year For Prop 65 Bountyhunters

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As recently featured in the Los Angeles Times, Proposition 65 continues to be big business for a handful of plaintiffs’ lawyers and their select group of clients, but it’s highly questionable how much benefit California residents and consumers receive.

According to settlement data released by the California Office of the Attorney General, in 2019, 909 businesses paid close to $30 million to settle Proposition 65 claims asserted against them. The average settlement payment was nearly $33,000. Of this staggering sum, almost $24 million, or 80%, went directly into the pockets of plaintiffs’ lawyers. In sharp contrast, the California Office of Environmental Health Hazard Assessment (OEHHA), which implements Proposition 65, received only about 11% of the settlement payments, or $3.3 million. The plaintiffs – so-called “private enforcers” – took a share of more than $2.7 million.

Proposition 65, otherwise known as California’s Safe Drinking Water and Toxic Enforcement Act of 1986, is a “right to know” law. Prop 65 requires businesses to provide “clear and reasonable” warnings for exposures to any one of the more than 900 chemicals on the Proposition 65 list that are known to cause cancer, reproductive harm or birth defects, before they can be sold in California. The obligation to warn can fall on all parties in the supply chain – manufacturers, producers, packagers, importers, suppliers, distributors and retailers. Businesses that fail to provide such warnings risk receiving a written “Notice of Violation”, a precursor to a Proposition 65 enforcement lawsuit.

Violations of Proposition 65 can cost businesses tens of thousands of dollars in civil penalties, the noticing party’s attorneys’ fees, and defense costs. The deck is stacked against the business alleged to be in violation: In general, all the noticing party has to show is an exposure to a listed chemical. The burden of proof then shifts to the business to show that no actionable exposure has occurred, which is a difficult burden to meet under the law and can require costly expert witnesses. Accordingly, most Proposition 65 cases settle either out-of-court in a private settlement agreement, or in court through a court-approved consent judgment.

One chemical, di(2-ethylhexyl phthalate) or DEHP, accounted for more than half of the 2019 settlements. DEHP, a phthalate, is on the Proposition 65 list as a chemical known to cause cancer and reproductive harm. DEHP is commonly used in plastics to make them flexible. According to OEHHA, DEHP can be found in various types of plastic consumer products, including some shower curtains, furniture and automobile upholstery, garden hoses, floor tiles, coverings on wires and cables, rainwear shoes, lunchboxes, binders, backpacks, plastic food packaging materials, and medical devices and equipment. In 2019, businesses settled claims over DEHP exposure from such products as cosmetic cases, goggles, gloves, erasers, hangers and bedding storage cases. The phthalate diisonoyl phthalate (DINP) and lead are two other chemicals that were the frequent subjects of 2019 settlements.

Proposition 65 claims in 2019 were again dominated by a small group of plaintiffs’ lawyers whose practices consist of sending out Notices of Violation and extracting settlements from businesses.

The private enforcers that have sent Notices of Violation this year include:

• APS&EE (represented by Law Offices of Lucas T. Novak)
• Anthony Ferreiro (represented by Brodsky & Smith, LLC)
• As You Sow (represented by Danielle Fugere and Chelsea Linsley of As You Sow)
• Audrey Donaldson (represented by Voorhees & Bailey, LLP)
• Berj Parseghian (represented by KJT Law Group PLC)
• Brad Van Patten (represented by Law Offices of George Rikos)
• CA Citizen Protection Group, LLC (represented by Khansari Law Corporation and Blackstone Law)
• Center for Environmental Health (represented by Lexington Law Group)
• Clean Label Project (represented by Davitt, Lalley, Dey & McHale, PC)
• Consumer Advocacy Group, Inc. (represented by Yeroulshalmi & Yeroulshalmi)
• Consumer Protection Group, LLC (represented by Blackstone Law)
• Dennis Johnson (represented by Voorhees & Bailey, LLP)
• Ecological Alliance, LLC (represented by Custodio & Dubey LLP)
• Ecological Rights Foundation (represented by Law Offices of Brian Gaffney)
• Ema Bell (represented by Brodsky & Smith, LLC)
• Environmental Health Advocates, Inc. (represented by Nicholas & Tomasevic LLP and Glick Law Group)
• Environmental Research Center, Inc. (represented by Michael Freund & Associates, Law Office of Richard M. Franco and Aqua Terra Aeris Law Group)
• EnviroProtect, LLC (represented by Kawahito Law Group APC)
• Erika McCartney (represented by Environmental Law Foundation)
• Evelyn Wimberley (represented by Law Offices of Stephen Ure, PC)
• Gabriel Espinoza (or Gabriel Espinosa) (represented by Brodsky & Smith, LLC)
• Keep America Safe and Beautiful (represented by Custodio & Dubey LLP and Sy & Smith, PC)
• Key Sciences, LLC (represented by Kyle Wallace and Davitt, Lalley, Dey & McHale)
• Kim Embry (represented by Nicholas & Tomasevic LLP and Glick Law Group)
• Kimberly Ann Harrison (represented by Law Office of Rick Morin, PC)
• Laurence Vinocur (represented by The Chanler Group)
• Mary Elizabeth Romero (represented by Agency D&L)
• Maureen Parker (represented by Law Offices of Stephen Ure, PC)
• My Nguyen (represented by Seven Hills LLP)
• Paul Wozniak (represented by The Chanler Group)
• Precila Balabbo (represented by Brodsky & Smith, LLC)
• Public Health and Safety Advocates, LLC (represented by Law Offices of Danialpour & Associates)
• Ryan Acton (represented by O’Neil Dennis)
• Sara Hammond (represented by Joseph D. Agliozzo, Law Corporation)
• Shefa LMV, Inc. (represented by Law Office of Daniel N. Greenbaum)
• Susan Davia (represented by Sheffer Law Firm)
• Tamar Kaloustian (represented by KJT Law Group PLC)
• The Chemical Toxin Working Group, Inc. (represented by Khansari Law Corporation)
• Zachary Stein (represented by KJC Law Group APC)

Businesses should be aware of and ensure compliance with Proposition 65’s requirements if their products are sold in California. In the event a Notice of Violation is received, businesses should contact qualified legal counsel. Conkle, Kremer & Engel attorneys are highly experienced in defending businesses against Proposition 65 claims as well as counseling businesses on compliance, in order to minimize the risk of enforcement actions.

2019 Prop 65 By the Numbers:

• 1,000: Notices of Violation Served
• 909: Number of Settlements/Consent Judgments
• $29.7 Million: Paid by Businesses to Resolve Claims
• $23.7 Million: Attorneys’ Fees & Costs Collected by Noticing Parties’ Attorneys
• $2.7 Million: Payments Collected by Noticing Parties
• $3.3 Million: Payments to OEHHA
• $32,706: Average Settlement/Judgment Amount

The number of enforcement actions in 2019 was not a fluke. Similar numbers have been accumulated in prior years. Just in the first few months of 2020, a considerable number of new enforcement actions have been pursued. 2020 Prop 65 enforcement actions will be reviewed in an upcoming blog post.

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New SBA Rule Clarifies PPPFA Loan Forgiveness

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We previously posted about the Paycheck Protection Program Flexibility Act (“PPPFA”), which updated the Paycheck Protection Program (“PPP”) to provide loan recipients with more flexibility. When we posted, we noted that questions remained about how the important loan forgiveness aspect of the PPP would work under the new flexibility rules. The Small Business Association, in connection with the Treasury, has now issued further guidance that provides some greater clarity.

The PPPFA expanded the covered period, for all borrowers who received their PPP loans on or after June 5, 2020, from the original 8 weeks to 24 weeks (or December 31, 2020, whichever is earlier). Loan recipients who obtained PPP loans before June 5, 2020 could elect either the 8 or the 24 week covered period. The “covered period” refers to the time during which the borrower must use the loan for PPP’s allowed costs, notably payroll, rent and utilities.

The text of the U.S. Treasury Department’s earlier Interim Final Rule stated that a loan recipient must wait until the covered period ended before applying for loan forgiveness. The updated Interim Final Rule states that a loan recipient may apply for loan forgiveness anytime during its covered period as long as it has already expended the entirety of its PPP loan. For example, if a loan recipient elects the 24 week covered period and expends all of its PPP loan funds by week 10, it may apply for loan forgiveness immediately rather than wait until week 25. Remember, though, that the last day to file for loan forgiveness remains 10 months after the end of the loan recipient’s covered period.

While loan recipients have the ability to apply for loan forgiveness immediately after expending its PPP loan, the 10 month window provides flexibility to apply for loan forgiveness at the most opportune moment. The loan forgiveness application requires loan recipients to provide information about any decreases in workforce and reductions in wages/salary. Those changes in workforce will result in a corresponding decrease in the amount of loan forgiveness for which the loan recipient is eligible.

If a loan recipient believes that, within a few months, it will be able to hire or re-hire employees and return wages/salary to “pre-COVID-19” levels, then waiting to fill out the loan forgiveness application may be prudent. On the other hand, if the loan recipient anticipates future layoffs and compensation cuts, then applying sooner would be advantageous to avoid loan forgiveness reductions. But keep in mind that December 31, 2020 is the last day for a loan recipient to return its workforce to the requisite levels in order to receive full loan forgiveness.

Conkle, Kremer & Engel attorneys will continue to monitor the COVID-19 relief program landscape for updates to guide clients.

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The California Consumer Privacy Act (“CCPA”) Is Enforceable Beginning July 1, 2020. Is Your Business Ready?

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You may have noticed a recent influx of personal emails about updates to businesses’ privacy policies and terms and conditions. This may be due, in part, to the California Consumer Privacy Act (“CCPA”) allowing individuals to bring private rights of action against businesses. While the CCPA was effective January 1, 2020, it will be enforceable by the California Attorney General beginning July 1, 2020.

What is the CCPA?

The CCPA grants California consumers the right to control the personal information that businesses collect about them. Through the CCPA, California residents have the right to know what personal information is being collected, whether their personal information was sold or disclosed (and to whom), and may request that businesses delete their personal information. Under the CCPA, personal information is any data that identifies, relates to, or describes a particular person or household. Information such as a person’s name, address, and email address (even a computer IP address) are considered personal information. This applies to information collected online and offline, so the CCPA may apply to businesses even if they do not have a website.

Not all businesses need to comply.

The CCPA applies to for-profit businesses that collect consumers’ personal information and meet one or more of these criteria:

(1) The business has an annual gross
revenue in excess of $25M;

(2) The business collects, buys,
receives, sells, or shares the personal information of 50,000 or more
California-resident consumers, household, or devices; or

(3) The business derives 50% or more of
its annual revenue from selling consumers’ personal information.

Even small consumer-oriented businesses should take particular note of the second criteria: If the business’ website collects what the Act classifies as “personal information,” such as email addresses or the IP Address of the computer accessing the website, it may not take very long to collect that kind of information about 50,000 California-resident devices or consumers and make the business subject to the Act.

Upon receiving a verified consumer request, businesses meeting any of the above-mentioned criteria must give California residents the means to exercise their rights under the CCPA and cannot discriminate against them for exercising these rights. Businesses must complete the consumer’s request within 45 days, although an extension of time may be available, and the process of responding to consumer requests must be supported by reasonable security procedures and practices.

What happens if a business does not comply?

A failure to cure any alleged violation of the CCPA within 30 days of notification of alleged noncompliance will subject businesses to an injunction and civil penalties of no more than $2,500 per violation or $7,500 per intentional violation. And if personal information is improperly disclosed or stolen due to the absence of reasonable security procedures and practices, businesses may be subjected to civil action for injunctive or declaratory relief, damages of $100 to $750 per consumer, per incidentor actual damages (whichever is greater), or any other relief that the court deems proper.

Are you ready to comply with the CCPA? Attorneys at Conkle, Kremer & Engel are staying current with the CCPA to guide their clients through compliance.

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LGBTQ Discrimination is Now Prohibited Nationally, but California was Ahead of the Trend

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As headlines across the country have blared, on June 15, 2020 in Bostock v. Clayton County, Georgia the U.S. Supreme Court ruled that firing an individual for being homosexual or transgender is unlawful employment discrimination on the basis of sex under Title VII of the U.S. Civil Rights Act of 1964. But this rule is nothing new in California, which has long prohibited employment and housing discrimination on the basis of an individual’s LGBTQ characteristics.

Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions.

Bostock v. Clayton County, Georgia, U.S. Supreme Court

In bold and straightforward language the U.S. Supreme Court’s Bostock decision affirmed that any consideration of sex, homosexuality or transgender status in the course of adverse employment decisions is a violation of Title VII, even if there were other factors in the decision:

An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.

California’s equivalent rule is based on its Fair Employment and Housing Act (FEHA), which prevents employers from in any manner “discriminating” against persons based on their sex, gender, gender identity, gender expression or sexual orientation (among many other protected classes). While news stories about the Bostock decision emphasized hiring and firing decisions, “discrimination” can involve much broader employment concerns that involve consideration of prohibited classifications, such as:

  • – Transferring, demoting or taking other “adverse employment actions” with respect to an employee
  • – Paying an employee less than similarly situated employees
  • – Providing fewer or worse benefits to an employee than similarly situated employees
  • – Requiring additional conditions of employment for one employee compared to similarly situated employees

The U.S. Supreme Court’s decision did not weaken California’s existing protections for gay and transgender individuals, but provides an additional source of protection for them. California employers should continue to actively prohibit and take all reasonable steps to prevent discrimination in the workplace, and keep in mind that unlawful “discrimination” can encompass many types of adverse employment actions beyond hiring and firing decisions.

To guide our business clients, Conkle, Kremer & Engel attorneys stay updated on the latest developments in employment law, including anti-discrimination and wage & hour concerns.

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PPP Flexibility Act’s Changed Timing and Terms of Loan Forgiveness

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We have previously posted about the Paycheck Protection Program (“PPP”) that was created by the U.S. Coronavirus Aid, Relief, and Economic Security (CARES) Act. Like many rushed legislative programs, PPP had issues from the outset. Enter the Paycheck Protection Program Flexibility Act of 2020 (“PPPFA”), signed on June 5, 2020 to amend some parts of the CARES Act that pertain to the PPP. UPDATE: As of July 4, 2020, the PPP program remains open to new applications through August 8, 2020, and there were $130 Billion in funds remaining to be claimed by employers of almost all sizes. (Read on for more on that.)

The Small Business Association, in conjunction with the Treasury, issued an Interim Final Rule conforming its previous rule to the PPPFA and attempting to clarify some key points. As described below, some important questions under the PPPFA remain unanswered even by the new Interim Final Rule.

The most obvious purpose of the PPPFA is to extend the “covered period” in which PPP funds can be expended on allowed costs, such as payroll, rent and utilities. Whereas the PPP loans were limited to an 8 week “covered period” of expenses, the PPPFA extends the covered period to 24 weeks, or until December 31, 2020, whichever comes first. This extension applies to all PPP loans that originated after June 5, 2020, but employers who took loans prior to that date have an option to maintain the original 8 week period or extend to the 24 week covered period.

The election between the 8 week covered period and the 24 week covered period will have significant ramifications for earlier loan recipients. The election between an 8 week covered period or a 24 week covered period is binary, and only funds spent during the elected covered period may be counted toward loan forgiveness. A loan recipient may not, for example, choose a 16 week covered period, but there does not appear to be anything restricting a loan recipient from electing a 24 week covered period but spending all the PPP funds in 16 weeks, for example.

The text of the PPPFA does not prevent a loan recipient from applying for loan forgiveness at any time that its PPP funds have been exhausted on covered expenses, or alternatively waiting up to 10 months after the expiration of the coverage period. However, the language of the Treasury Department’s Interim Final Rule implies that a loan recipient must wait until its covered period has ended before applying for loan forgiveness. Hopefully, the Treasury Department will clarify this soon, particularly because the date of the employer’s Loan Forgiveness Application can be important.

Employers should recall from our earlier post that if employees or wages are too drastically cut, there will be a reduction of the amount of loan forgiveness the employer will receive under PPP. So the date on which that measurement is made may be very significant if the employer’s workforce or salaries have changed. At present it appears that the SBA will measure workforce and salary levels as of the date of the Loan Forgiveness Application or December 31, 2020, whichever comes first, and will compare that against the employer’s average payroll during the original measurement period of February 15 to April 26, 2020. There remains some possibility that the SBA will require that the same level of employees and wages also be maintained as of December 31, 2020, but if so exactly how that might work is not clear and should be the subject of further Treasury Department rulings.

If the employer has had layoffs or wage cuts, PPPFA extends the date by which loan recipients must rehire full time equivalent employees and eliminate salary/wage cuts from the previous deadline of June 30, 2020 to December 31, 2020. Failure to rehire and restore wages will result in a decrease of the amount of loan forgiveness for the employer. But if a loan recipient can show in good faith (a) an inability to rehire individuals who were employees of the eligible recipient, and (b) an inability to hire similarly situated qualified employees, by the December 31, 2020 deadline, there will be no corresponding reduction in loan forgiveness for failure hire/re-hire such employees. It is not yet clear whether this same exception may apply to salary/wage cuts. Whether the deadline has any impact if a loan forgiveness application was made prior to this last day has yet to be explained by the Treasury Department.

Loan recipients now have up to 10 months from the date the covered period ends to apply for loan forgiveness. Failure to do so within the 10 months allowed will result in denial of loan forgiveness and the loan recipient must repay principal, interest and fees on the loan. If the loan is not forgiven, its term is now 5 years for all loans originating on or after June 5, 2020. Earlier loans retain a 2 year term, but lenders and loan recipients are free to agree to amend the duration to 5 years.

Another prominent feature of the PPPFA is that loan recipients must use 60% of the loan amount for payroll in order to be eligible for loan forgiveness, whereas the original PPP required 75% of the proceeds to be used for payroll. The PPPFA appears to make this 60% standard absolute – if it is not met, then there will be no loan forgiveness. But the U.S. Treasury Department’s Interim Final Rule, and the revised Loan Forgiveness Application, appears to disagree and instead provides that if a loan recipient does not use at least 60% of the loan amount for payroll, then the loan forgiveness will be decreased proportionately with the shortfall of expenditures on payroll. This interpretation is more in line with the original PPP’s standard, but it remains uncertain whether the U.S. Treasury Department can effectively impose this standard over statutory language that appears to say otherwise.

As the name of the Paycheck Protection Program Flexibility Act suggests, and as the Interim Final Rule explicitly states, the goal of the PPPFA is to provide employers with more flexibility when using PPP loan funds. Because $130 Billion in allotted loan funds went unclaimed at the end of the original and once-extended application period, on July 4, 2020 President Trump signed Congress’ unanimously-approved amendment to extend the last day to apply for any PPP loan to August 8, 2020.

The updated and revised PPP loan application can be found here. Conkle, Kremer & Engel attorneys stay current on the latest amendments in order to help business clients navigate the maze and maximize the benefits available to them under PPP loans and other government COVID-19 relief programs.

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Limiting Risks When Reopening Your Business After COVID-19 Shutdown

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Many businesses are understandably eager to resume operations as the restrictions to prevent the spread of the novel coronavirus loosen. Beginning in the second week in May 2020, businesses in some sectors of California’s economy were permitted to reopen, as the state entered Stage 2 of Governor Gavin Newsom’s plan to reopen the economy.

As the state continues its efforts to slow the spread of COVID-19 pandemic, the reality is that businesses will look very different when they reopen. While taking reasonable steps to prevent illness in the workplace is always advisable practice, it is paramount now. As businesses reopen, they must ensure that they are taking all necessary precautions to protect the health and safety of their employees, customers, and visitors. In doing so, businesses may well protect themselves from exposure to liability down the road.

STAY CURRENT AND DEVELOP A PLAN FOR BUSINESS REOPENING

Businesses should closely monitor government directives related to COVID-19 at the federal, state and local level, and ensure they are in compliance. Being out of compliance with current recognized legal standards is a sure invitation to liability claims if someone can show they were injured as a result.

GUIDANCE FROM OSHA AND THE CDC

As a foundation, businesses must follow existing Occupational Safety and Health Administration (OSHA) standards during the pandemic, such as the General Duty Clause, Section 5(a)(1), of the Occupational Safety and Health Act, which states that all workers must be provided workplace that is safe and free of hazards. In addition, OSHA has released guidelines for businesses to reduce the risk of infection in the workplace posed by COVID-19.

OSHA is also closely coordinating with CDC, NIOSH and other agencies on proper safety precautions. The CDC has issued Guidance on Disinfecting the Workplace (specifically after a suspected or confirmed case of COVID-19). For instance, routine cleaning of commonly used areas is crucial to preventing the spread of COVID-19 in the workplace. However, areas that have not been used in a week or more require only routine cleaning. Employers should check the CDC and OSHA websites often for guidance to make sure their business has the most updated guidance on PPE and other safety measures.

STATE-LEVEL GUIDANCE

According the state’s guidance on Stage 2 of reopening Before reopening, all facilities must:
• Perform a detailed risk assessment and implement a site-specific protection plan
• Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have symptoms
• Implement individual control measures and screenings
• Implement disinfecting protocols
• Implement physical distancing guidelines

California has also issued industry-specific guidance relevant to the businesses of many of our clients:
“Logistics and Warehousing Facilities” –
COVID-19 INDUSTRY GUIDANCE: Logistics and Warehousing Facilities
COVID-19 General Checklist for Logistics and Warehousing Employers
“Manufacturing” –
COVID-19 INDUSTRY GUIDANCE: Manufacturing
Cal/OSHA COVID-19 General Checklist for Manufacturing Employers
“Office Workspaces” –
COVID-19 INDUSTRY GUIDANCE: Office Workspaces
Cal/OSHA COVID-19 General Checklist for Office Workspaces

LOCAL STAY-AT-HOME ORDERS

The Safer at Home order covering businesses in Los Angeles County, which remains in effect for an indeterminate time, requires that all “Essential Businesses” (and, by extrapolation, other businesses that are allowed to open in some capacity):
(1) Provide employees with, and all employees are required to wear, a cloth face covering when performing their duties requires that they be around others;
(2) Practice social distancing by requiring patrons, visitors, and employees to be separated by six feet, to the extent feasible;
(3) Provide access to hand washing facilities with soap and water and/or hand sanitizer; and
(4) Post a sign in a conspicuous place at the public entry to the venue instructing members of the public not to enter if they are experiencing symptoms of respiratory illness, including fever or cough.

CONDUCT AN INDUSTRY-SPECIFIC RISK ASSESSMENT

• Walk through the workplace and observe it in its usual state during different phases of business activity.
• Rate all risks found as high, medium, and low risk, and address the risks accordingly.
• Regularly evaluate the office workspace for compliance with the plan and document and correct deficiencies identified.
• Investigate any COVID-19 illness and determine if any work-related factors could have contributed to risk of infection. Update the plan as needed to prevent further cases.

ADAPT YOUR IDER PLAN TO SAFELY REOPEN

Business will change after reopening, and business have to adapt accordingly. While a business cannot be expected to ensure prevention of infection with COVID-19 in its workplace, it is strongly advisable to institute and follow reasonable safety measures as part of an Infectious Disease Emergency Response Plan (IDERP). Once the business has developed a plan to protect its workers, it must then be effectively communicated to employees. The employer should post a notice of these policies in a conspicuous location in the workplace.

Part of this plan entails assessing current protocols to accommodate social distancing policies, such as:
• Require those employees that can work from home to do so; Helpful to categorize jobs classified as low, medium, high, and very high exposure risk.
• Provide hand sanitizer and schedule frequent cleaning to sanitize common areas in the workplace (such as door knobs, keyboards, the break room, etc.).
• Discourage workers from using other workers’ phones, desks, offices, or other work tools and equipment, as much as possible.
• Limit non-essential visitors and establish screening policies for essential visitors

COMMUNICATE THE PLAN TO EMPLOYEES AND MAKE IT AVAILABLE TO CUSTOMERS

• Train managers and supervisors to recognize COVID-19 symptoms, the precautions that will be implemented to prevent infection, and how to response to emerging employee/customer infection.
• Inform and encourage employees to self-monitor for signs and symptoms of COVID-19 if they suspect possible exposure.
• Instruct managers, supervisors and employees on use of PPE, cleaning schedules and sanitizing techniques, and what to do if exposure is suspected.
• Have a summary of the plan posted or available to customers on request.
• Address when employees are fearful to come into work because of the risk of contracting COVID-19 by discussing the IDER Plan that has been implemented.

VERIFY ALL NEW AND RETURNING PERSONNEL’S HEALTH AND ABILITY TO WORK

• Utilize a basic Health Questionnaire each day an employee reports to work.
• Consider implementing pre and post work shift temperature checks. Employees should not be permitted to work with temperatures over 100.4°F. The EEOC has confirmed that measuring employees’ body temperatures and/or testing for COVID-19 does not run afoul of the employee privacy protections provided in the Americans with Disabilities Act (“ADA”), but the results must be kept confidential. (Note that body temperature is not completely reliable, as some carriers of the virus do not exhibit fever symptoms.) The EEOC has not addressed antibody testing to date.
• Be certain to avoid discriminatory practices in the Health Questionnaire and health screening of employees.

WHAT IF AN EMPLOYEE TESTS POSITIVE FOR COVID-19 AFTER REOPENING?

The business’ IDERP should include protocols for how the business will respond if an employee test positive for COVID-19.
• Develop policies and procedures from prompt identification and isolation of sick workers (The CDC Guidance on Disinfecting the Workplace specifically addressed safety measures after a suspected or confirmed case of COVID-19).
• Until at least July 6, 2020, California presumes a COVID-19 infection was acquired at work if it was diagnosed, or a positive test occurs, within 14 days after any worksite appearance. While the presumption can be rebutted in theory, in effect this means that active employees will almost always receive workers compensation benefits and treatment for COVID-19 infections. Be sure to follow normal workers compensation procedures as you would for any other workplace injury or illness.
• EEOC guidelines allow employers to ask if employees are experiencing recognized symptoms of COVID-19 (fever, cough, shortness of breath, sore throat). Employers must maintain that information in confidence as a medical record – information about an employee’s symptoms may be protected by ADA or HIPPA.
• Once the employer has good faith reason to believe an employee has a suspected or confirmed case of COVID-19, the employee should be required to stay out of the workplace for a 14-day period or until cleared by a doctor’s note or alternative, such as a negative COVID-19 test report. This policy must be applied in a non-discriminatory fashion, not applied only against selected individuals.
• The employer must advise other employees who may have contact with the affected person, without identifying the affected employee, to protect that employee’s privacy. The employer must take steps to prevent harassment or discrimination against those suspected of having COVID-19.

DEVELOP CONTINGENCY PLANS IN THE EVENT OF AN OUTBREAK

Businesses would be wise to develop contingency plans to prepare for scenarios which may arise as a result of outbreaks, such as:
• Increased rates of worker absenteeism.
• The need for social distancing, staggering work shifts, downsizing operations, delivering services remotely, and other exposure-reducing measures.
• Options for conducting essential operations with a reduced workforce, including cross-training workers across different jobs in order to continue operations or deliver surge services.
• Options for interrupted supply chains or delayed deliveries.
Employers who implement these safety measures and diligently adhere to them will not only improve their workplace and avoid disruptions, they will reduce their exposure to liability in the event that an employee, customer or vendor contracts COVID-19.

Conkle, Kremer & Engel attorneys will continue to monitor and advise clients about the legal implications of the COVID-19 pandemic, and how businesses can navigate these uncertain times.

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U.S. Dept. of Labor Publishes FAQ Guidelines for FFCRA

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We recently posted about the U.S. Families First Coronavirus Response Act (FFCRA), including its most important components, the Emergency Paid Sick Leave Act and the Emergency Medical Leave Expansion Act. As with most of the major new enactments intended to address COVID-19 issues, there was so little lead time that widespread confusion followed. The U.S. government has provided updates and guidelines to try to clarify the application of the FFCRA.

Most recently, the Department of Labor (DOL) has provided a “FAQ” response with more specific guidance to employers about how to comply with the FFCRA. These are some of the most important takeaways for employers:

  1. The DOL cleared up ambiguity surrounding whether state and local “stay at home” orders are considered a “quarantine or isolation order” for purposes of qualifying for EPSL under the FFCRA. The DOL guidance provides that a quarantine or isolation order includes a broad range of governmental orders including orders that “advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.” However, the government order must be the “but for” cause of the inability to work. An employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee, such as due to a downturn in business related to COVID-19, because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order.
  2. Employees are not entitled to take EPSL or Emergency Family and Medical Leave (EFML) if their employer’s business has been forced to shut down in response to a federal, state or local government directive.
  3. If an employee takes EFML, an employer may require that the employee concurrently use any leave offered under the employer’s policies that would be available for the employee to take to care for his or her child, such as vacation, personal leave, or paid time off. No such provision exists with respect to EPSL.
  4. The DOL also provided additional guidance on the specific factors a small employer, with fewer than 50 employees, must show to receive an exemption from the requirement to provide leave under the FFCRA, when doing so would “jeopardize the viability of the business as a going concern.”
  5. Employers whose employees are teleworking should bear in mind that they are still required to comply with labor laws. Employees who are teleworking for COVID-19 related reasons must always record, and be compensated for, all hours worked, including overtime.
  6. An employee’s “regular rate of pay” as that phrase is defined under the Fair Labor Standards Act is used to determine the amount an employer must pay an eligible employee who takes EPSL or EFML (after the initial two-week unpaid period). Employers need to ensure they are accurately calculating employees’ regular rate of pay when compensating employees for paid leave.

The DOL’s FAQs, available here, provide needed guidance to help employers interpret and comply with the FFCRA. Conkle, Kremer & Engel attorneys continue to monitor and advise clients about the legal events affecting businesses trying to manage the impact of the COVID-19 pandemic.

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Ready or Not, FFCRA is Here

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The new Families First Coronavirus Response Act (FFCRA) became effective April 1, 2020, as the first substantial U.S. labor law response to the extensive disruption of employment resulting from COVID-19. Employers with fewer than 500 employees are affected, and need to understand its implications to be able to respond legally and appropriately. The most important parts of FFCRA are divided into three sections:

  • Emergency Paid Sick Leave Act (EPSLA)
  • Emergency Family and Medical Leave Expansion Act (EFMLA)
  • Tax Credits for Paid Sick and Paid Family and Medical Leave.

Be sure to read to the end – the Tax Credits are how employers get repaid the benefits that FFCRA requires them to pay employees.

Employers’ Notice Posting Requirements Under the FFCRA

As an initial note, the Department of Labor (DOL) has issued guidance on the FFCRA providing that employers with fewer than 500 employees are required to post a Notice of employees’ paid leave rights under the FFCRA conspicuously in their workplace. If some or all of an employer’s workers are working remotely, this notice requirement can be satisfied via email, regular mail, or a posting to the employer’s internal or external website. Employees who were recently laid off need not be provided with the Notice. The DOL guidelines will be the subject of another blog post in the near future.

The Emergency Paid Sick Leave Act (EPSLA)

The EPSLA requires employers with fewer than 500 employees to provide employees with Emergency Paid Sick Leave (EPSL), in addition to any leave accrued pursuant to the employer’s existing paid sick leave policy. An employee is entitled to use EPSL if the employee is unable to work or telework because they are:

  1. Subject to a federal, state or local quarantine or isolation order
  2. Advised by a health care provider to self-quarantine
  3. Experiencing COVID-19 symptoms and seeking medical diagnosis
  4. Caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns
  5. Caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency
  6. Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor

Employees qualify for emergency paid sick leave regardless of the duration of their employment prior to the leave, and cannot be forced to exhaust other forms of accrued leave prior to using the new emergency paid sick leave. Employers must pay eligible employees for EPSL, but the FFCRA places caps on the amount:

• Full-time employees are to be paid for 80 hours at their “regular rate of pay” (as defined in the Fair Labor Standard Act) when the emergency paid sick leave taken for reasons 1 though 3 (limited to $511/day or $5,110 total per employee); and two-thirds of the employee’s regular rate of pay when leave is taken for reasons 4 through 6 (limited to $200/day, or $2,000 total per employee).
• Part-time employees are to be paid in the same manner, except the number of hours is based on the average number of hours worked over a two-week period.

The Emergency Family and Medical Leave Expansion Act (EFMLEA)

EFMLEA requires affected employers to allow eligible employees to take up to 12 weeks of paid leave if they are unable to work or telework due to the need to care for their minor child because the child’s school or childcare is unavailable due to Coronavirus-related reasons. The first 14 days (2 weeks) of the leave is unpaid, but the remaining 10 weeks must be paid at two-thirds of the employee’s regular rate of pay (limited to $200/day and $10,000 in the aggregate per employee). Note that an employee may elect to use ordinary accrued paid sick, vacation and/or PTO leave to cover the initial 10-day unpaid time period, and may also qualify for EPSLA.

Employers with 25 or more employees are required to return any employee who takes EFMLEA leave under this section to the same or an equivalent position upon the employee’s return to work. Employers with fewer than 25 employees are exempted from this requirement if they can show that, despite good faith efforts to restore the employee’s position, due to economic hardship no such position exists following the leave.

The DOL has advised that employers with fewer than 50 employees qualify for exemption from providing EFMLEA leave if it would “jeopardize the viability of the business as a going concern.” Employers seeking this exemption should document why their business meets this criteria.

Employer Tax Credits For Paid Leave under FFCRA

FFCRA includes crucial tax credit provisions intended to reimburse employers for mandatory employees’ paid leave benefits under the FFCRA. 100 percent of qualified (i.e. subject to the limits discussed above) sick and family leave payments made each quarter, through December 31, 2020, are exempt from the employer’s portion of payroll taxes. The credit is an offset to any payroll tax liability the employer has in the calendar quarter. Any excess amounts of paid leave above the employer-portion of the payroll taxes and deposit will be refunded to the employer. Employers should consult a tax professional regarding the full scope and limitations of these tax credits as they apply to their businesses.

Employers Who Shut Down Operations or “Furlough” Employees Need Not Provide FFCRA Leave

The DOL’s guidance provides that employees are not entitled to take paid sick leave or family and medical leave if their employer closes their worksite before, on or after April 1, 2020 (or if the business stays open on or after April 1, 2020, and employees are furloughed) if the business has been forced to shut down in response to a federal, state or local government directive.

Attorneys at Conkle, Kremer & Engel are monitoring the many legal implications of employers’ responses to COVID-19. CK&E is available to help businesses navigate compliance with the FFCRA, and other federal, state and local regulations intended to address the Coronavirus pandemic.

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Employers’ Duties to Maintain Employee Privacy in a COVID-19 Pandemic

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Dealing with illness in the workplace can be challenging under normal circumstances, but it is much more so in the midst of the Coronavirus pandemic. Many questions remain unanswered regarding the precise application of federal, state and local orders and their relationship with employee benefits. As COVID-19 becomes an increasing presence in California workplaces, and employers are forced to comply with government directives, it is just as important as ever for employers to take steps to maintain compliance with employee privacy regulations. Workers who suffer adverse employment decisions, such as pay reductions, furloughs and layoffs, may be particularly attuned to whether all their rights were respected in the process.

How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?

According to Guidance provided by the Equal Employment Opportunity Commission (EEOC) addressing the COVID-19 pandemic, employers covered by the Americans with Disabilities Act (ADA) may ask employees if they are experiencing COVID-19 symptoms such as fever, chills, cough, shortness of breath, or sore throat, but employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

Does an employer have a duty to inform employees that one of their colleagues has tested positive for COVID-19?

Employers may be uncertain about whether to tell employees that there has been a reported case of COVID-19 in the workplace. Depending on the particular facts involved, information regarding illness of an employee or family member may be protected under the Health Insurance Portability and Accountability Act (HIPAA), the ADA or both.

A pandemic, on the other hand, likely alters those practices. In light of the rapid spread of COVID-19, employers should promptly inform workers if one of their colleagues tests positive for the virus. However, employers typically need not divulge the identity of an employee or employee’s family member to achieve the objective of maintaining a healthy workplace.

Employers may also choose to notify employees and other relevant parties that contagious illnesses may be present in any workplace and list precautionary steps suggested by medical professionals, such as the CDC. Even when not specifically required by law, it is important for business effectiveness to maintain the privacy of individual employees. These matters are best handled carefully to prevent unnecessary disruption in the workplace.

How should the employer communicate to employees that one of their colleagues has a suspected or confirmed case of COVID-19?

Clear, effective employer communications are critical to providing employees with relevant information, maintain order in the workplace, and reduce employees’ concerns. Employers should keep the following in mind when developing employee communications:

• Inform employees that the company will take any reasonable and necessary steps to ensure a safe and healthy work environment.
• Identify typical symptoms employees should watch out for.
• Include information on how to protect against getting the illness.
• Advise employees of any changes to policies.
• Notify employees of any discontinued travel.
• Ensure HR is available and prepared to address employees’ questions

What Are Employers’ Obligations to Prevent Harassment of Those Suspected of Being Infected?

Employers must take steps to prevent discrimination and harassment against individuals who have a potential claim that they are disabled due to a COVID-19 related reason. Employers should consider reminding employees of anti-harassment and discrimination company policies. Employers must be vigilant about promptly responding to and investigating any complaints of harassment or bullying in the workplace, and be conscious to limit the spread of rumors and speculation amongst the workforce.

Under the ADA, may an employer to require employees to provide a doctors’ notes certifying their fitness for duty when they return to work?

The EEOC says yes. The ADA permits such inquiries either because they would not be disability-related or, are justified under the ADA standards for disability-related inquiries of employees given the COVID-19 outbreak. However, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

Conkle, Kremer and Engel’s attorneys follow the legal developments concerning Coronavirus issues at the federal, state and local level. We are available to assist employers navigate their rights and obligations in these difficult times.

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