Risk-Sharing Pools

On March 14, 2020, the House of Representatives passed H.R. 6201, the Families First Coronavirus Response Act (“FFCRA”). On March 18, 2020, the Senate passed the FFCRA, and President Trump signed it into law.

The FFCRA provides for two primary leave items that affect employers:

1. Establishes Emergency Paid Sick Leave
2. Establishes Public Health Emergency Leave under the FMLA

The FFCRA is effective April 1, 2020, and the FFCRA and all of its requirements expire on December 31, 2020. In order to be compliant with the FFCRA which takes effect April 1, 2020, we strongly encourage employers to begin taking necessary steps to prepare now and seek legal counsel to assist as needed.

The Secretary of Labor has been authorized to issue regulations and guidelines. We will continue to monitor those developments. In the meantime, the Department of Labor (DOL) has issued some informal guidance on the FFCRA.[1] The DOL has also issued Field Assistance Bulletin 2020-1: Temporary Non-Enforcement Period Applicable to the Families First Coronavirus Response Act, which provides guidance to Wage and Hour Division staff regarding the temporary non-enforcement (in some cases) of the FFCRA. Finally, the DOL has posted a model FFCRA notice, and information about the notice.[2]

This memorandum has been updated as of March 25, 2020 to include that additional information.

EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

Within the FFCRA, the Emergency Family and Medical Leave Expansion Act temporarily amends the Family Medical Leave Act (“FMLA”) by adding “a qualifying need related to a public health emergency” to the reasons that an eligible employee would be entitled to take FMLA leave.

Does the new law affect any existing terms of the FMLA?

No, the existing qualifying reasons for taking FMLA (e.g. serious health condition, military caregiver, baby bonding) are not affected by the new law. However, for just the new “qualifying need related to a public health emergency,” the law establishes some new and different terms compared to the existing FMLA.

How long will the new law be in effect?

The law provides that “public health emergency” will no longer be a qualifying reason after December 31, 2020.

Which employers will be subject to the new law?

The new law applies to private sector entities employing fewer than 500 employees and to all public sector employers.

Which of their employees are eligible for leave under the new law?

Employees are eligible after 30 days of employment, regardless of the number of individuals employed at their worksite or geographic region.

An employee has been employed for at least 30 calendar days if the employee was on payroll for the 30 calendar days immediately prior to the day the employee’s leave would begin. For example, an employee requesting leave on April 1, 2020, would need to have been on payroll as of March 2, 2020.

Time spent working as a temporary employee for the same employer counts toward the eligibility period if the employer subsequently hires the employee on a full-time basis.

Are any categories of employees excluded from eligibility under the new law?

The law does not exclude any categories of employees automatically. However, if the employee is a “health care provider” or an “emergency responder,” the employer may choose to exclude the employee from eligibility for emergency paid sick time. In addition, the law authorizes the Secretary of Labor to issue regulations to exclude “certain health care providers and emergency responders” from eligibility. No such regulations have issued as of the time of this update.

What are the new qualifying reasons for eligible employees to take leave under the new law?

As defined, a “qualifying need related to a public health emergency” means any one of the following:

• The employee is unable to work (or telework) due to a need to care for the employee’s son or daughter because the son or daughter’s elementary or secondary school or place of care has been closed due to a public health emergency;
• The employee is unable to work (or telework) due to a need to care for the employee’s son or daughter because their child care provider is unavailable, due to a public health emergency.”

Does the law change any of the definitions (such as “health care provider,” “parent,” etc.) under the existing FMLA?

No, the law does not change the definitions as they apply to existing qualifying reasons under the FMLA.

Is the leave paid or unpaid?[3]

The first 10 days of public health emergency FMLA leave may be unpaid. After that, the employer shall provide paid leave in an amount that is not less than 2/3 the employee’s regular rate of pay (as defined by the FLSA) and based on the number of hours the employee would otherwise be normally scheduled to work. However, in no event, may the compensation for the paid leave exceed $200 per day or $10,000 total.

The DOL has confirmed that scheduled overtime hours should be included in the total hours on which the regular rate of pay is based. However, pay for leave taken during scheduled overtime hours need not be compensated at a premium rate.

The DOL has also confirmed that an employee who is taking public health emergency FMLA leave may use emergency paid sick leave for the first 10 days, which are otherwise unpaid. The employee may instead choose to substitute any accrued vacation, personal leave, or other medical/sick leave for unpaid leave. The DOL also stated in its guidance that an employee who is eligible for both public health emergency FMLA leave and paid emergency sick leave (discussed below), is entitled to no more than a combined total of 12 weeks of paid leave.

How do employers calculate the amount of leave to give to employees with varying schedules?

If the employee’s schedule varies from week to week in such a way that the employer cannot determine with certainty the number of hours that the employee would have worked, then the employer should use one of the two following calculations:

1. A number equal to the average number of hours that the employee was scheduled per day (including any leave taken by the employee) over the six-month period ending on the date on which the employee begins the public health emergency FMLA leave.
2. If the employee did not work over a six-month period, then the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

Similarly, for part-time employees, the DOL explained that employers must calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours.

If a part-time employee has not been employed for at least six months, then you must use the number of hours that you and your employee agreed that the employee would work upon hiring. If there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

Is the public health emergency FMLA leave applied retroactively to leave taken before April 1, 2020?

The DOL has stated that public health emergency FMLA leave does not apply retroactively.

Are employees required to give notice of their need for public health emergency FMLA leave?

When the need for public health emergency FMLA leave is foreseeable, the employee shall provide notice to the employer as soon as is practicable.

What are the requirements regarding reinstatement?

The only change to the general right to reinstatement under the existing FMLA is to allow for an exemption for the employee of an entity with fewer than 25 employees if the employee’s position no longer exists due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a public health emergency during the leave. In the event that this occurs, the employer must make reasonable efforts to restore the employee to an equivalent position. If that is not possible, the employer must make reasonable efforts for one year after the earlier of the date on which the qualifying need related to a public health emergency concludes, or 12 weeks after the commencement of the employee’s leave.

There is nothing on the face of the FFCRA that limits the application of this section to only private employers. Unless regulations state otherwise, this exception would apply to public employers with fewer than 25 employees.

Does public health emergency FMLA leave run concurrently with CFRA leave?

No changes have been made to the California Family Rights Act (CFRA) at this time. Employees who take public health emergency FMLA leave could also be designated on CFRA leave, so long as the reason for public health emergency FMLA leave is also a qualifying reason for CFRA leave, and employees meet the existing eligibility requirements for CFRA leave.

EMERGENCY PAID SICK LEAVE

Which employers are covered by the FFCRA?

For purposes of emergency paid sick leave, “employer” includes any private employer who employs fewer than 500 employees, and any public agency that employs one or more employees.

Which employees are eligible for emergency paid sick leave?

Employees are eligible for emergency paid sick leave, regardless of how long the employee has been employed by the employer.

Are any employees excluded from coverage?

The law does not exclude any categories of employees automatically. However, if the employee is a “health care provider” or an “emergency responder,” the employer may choose to exclude the employee from eligibility for emergency paid sick time. In addition, the law authorizes the Secretary of Labor to issue regulations to exclude “certain health care providers and emergency responders” from eligibility. No such regulations have issued as of the time of this update.

How does emergency paid sick leave affect other employer-provided paid leave?

The employee may choose whether to use emergency paid sick leave prior to using any other paid leaves. The employer may not require that an employee use other paid leave before using emergency paid sick leave.

It was somewhat unclear on the face of the statute whether Congress intended to establish the emergency paid sick leave as is its own separate bank of leave, in addition to leave already provided by the employer, or if the employer could mandate that it run concurrently with other employer-provided sick leave. With the latest guidance, the DOL has not yet addressed this question head-on, but has stated that because the leave is a “new leave requirement,” an employer could not deny use of emergency paid sick leave because it had allowed use of paid sick time “for a reason identified in the Emergency Paid Sick Leave Act” before the FFCRA takes effect. While waiting to see if forthcoming regulations will address this, the more conservative approach would be to treat it as a separate bank of leave. We also recommend that employers begin internal factfinding to consider the potential logistics of implementing both approaches.

What are the reasons an employee could take emergency paid sick leave?

Employers are required to provide paid sick time to an employee who is unable to work or telework due to a need for leave because:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4. The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
5. The employee is caring for the employee’s son or daughter because that child’s school or place of care has been closed or the child care provider is unavailable due to COVID-19 precautions.
6. The employee is 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.

This last criterion has not yet been established; we will continue to monitor and update regarding further developments.

The terms “son or daughter” and “health care provider” have the same meanings as in the existing FMLA.

The employer may not require that the employee find a replacement employee for them during their time off.

How much emergency paid sick leave are employees eligible to take under the FFCRA?

Full-time employees may take up to 80 hours of emergency paid sick leave. Part-time employees may take up to a number of hours equal to the number of hours that the employee works, on average, over a two-week period.

The DOL has explained that if the normal hours scheduled for part-time employee are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours.

If a part-time employee has not been employed for at least six months, then you use the number of hours that you and your employee agreed that the employee would work upon hiring. If there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

If the employee requires fewer than 80 hours of emergency paid sick leave, the leave will end upon the start of the employee’s next scheduled work shift.

The DOL also clarified that emergency paid sick leave requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid as emergency paid sick leave is capped at 80.

Neither the FFCRA nor the guidance issued so far addresses whether this time can be taken intermittently.

Emergency paid sick leave does not carry over from one year to the next. Further, according to the DOL guidance, employees cannot take emergency paid sick leave for additional reasons once the 80-hour cap has been met.

How do employers calculate how much to pay employees for emergency paid sick leave?

An employee taking leave must be compensated at their “regular rate of pay” as determined by the FLSA, for the employee’s regularly scheduled hours, including regularly scheduled overtime hours. The DOL has stated that pay for leave taken during overtime hours need not be provided at a premium rate.

While the employee should be paid their regular rate of pay, compensation for emergency paid sick time shall not exceed $511 per day and $5,110 in total when emergency paid sick leave is taken for reasons 1, 2, and 3 above. Compensation for emergency paid sick time shall not exceed $200 per day and $2000 in total when it is taken for reasons 4, 5, and 6 above. The cap for reasons 4, 5, and 6 appears to be lower because the law specifies that the compensation for employees taking leave for those reasons shall be two-thirds of the amount of compensation for leave taken for reasons 1, 2, and 3.

Is the emergency paid sick leave applied retroactively?

The DOL has stated that emergency paid sick leave does not apply retroactively. Further, as noted above, the DOL made clear that employers cannot deny an employee use of emergency paid sick leave because the employer provided the employee with paid leave for a reason covered by emergency paid sick leave before April 1, 2020.

Is there any right to compensation for unused emergency paid sick leave?

There is no right to compensation for unused emergency paid sick leave upon the employee’s termination, resignation, retirement, or other separation from employment.

Are there any notices that employers are required to post?

Employers are required to post and keep posted, in conspicuous places where notices to employees are normally posted, a notice that will be prepared by the Secretary of Labor (more information on the required notice is set forth below).

What are the penalties that employers could face for discrimination, retaliation, or non-compliance?

Employers are prohibited from discharging, disciplining, or in any other manner, discriminating against an employee who takes leave under the FFCRA or who files a complaint, institutes any proceeding related to the FFCRA, or testifies or is about to testify in any such proceeding. An employer who willfully violates this provision will be considered in violation of Section 15(a)(3) of the Fair Labor Standards Act (29 U.S.C. 215(a)(3), and be subjected to the penalties in Sections 16 and 17 of the FLSA (29 U.S.C. 216, 217).

An employer who fails to provide emergency paid sick leave will be considered to have failed to pay minimum wages in violation of Section 6 of the FLSA (29 U.S.C. 206) and will be subjected to the penalties in Sections 16 and 17 of the FLSA (29 U.S.C. 216, 217).

ENFORCEMENT

Will DOL be bringing enforcement actions for all violations as soon as the FFCRA takes effect?

No, not for all violations. In an Enforcement Guidance issued on March 24, 2020, the DOL announced that there will be a “temporary non-enforcement period” for violations by an employer who demonstrates “reasonable, good faith efforts” to comply with the FFCRA.

How long is the “temporary non-enforcement period”?

The “temporary non-enforcement period” runs from March 18, 2020 through April 17, 2020.

How does an employer demonstrate “reasonable, good faith efforts” to comply with the FFCRA?

The standard assumes that an employer has violated some provision of the FFCRA and the violation has been brought to the employer’s attention by either the DOL, the employee seeking payment, or representative of an employee seeking payment.

To begin with, the employer must be able to show that its violation of the act was not “willful,” meaning that the employer did not know that its conduct violated the FFCRA or acted with “reckless disregard” as to whether or not its conduct was prohibited.

Once notified of the violation, the employer must take two steps:

1. Remedy any violations, including by making all affected employees whole as soon as practicable.
2. Provide a written commitment to the DOL that the employer will comply with the FFCRA in the future.

Are there violations for which the DOL may take enforcement action before April 17, 2020?

Yes. The DOL emphasized that it reserves the right to take enforcement action if a violation is “willful,” or if the employer does not take both of the required steps following notice of a non-“willful” violation.

What happens after April 17, 2020?

The DOL has stated that it will then “fully enforce violations of the Act, as appropriate and consistent with the law.”

MODEL NOTICE TO EMPLOYEES

Where do employers post the notice?

The notice should be posted in a conspicuous place on employer premises. The DOL also states that employers can satisfy the requirement by emailing or mailing the notice to current employees, or posting it on an employee information website. If employees are teleworking, make sure it is sent to them. Employers should also make sure that new employees are provided with the notice.

Does the notice have to be posted in other languages that employees speak?

Employers are not required to post in other languages, but the DOL is working to provide it in other languages. Certainly if you have non-English-speaking employees, posting it in other languages would be a best practice.

Where can employers find updated versions of the notice?

Employers can check for updated versions of the notice at www.dol.gov/agencies/whd.

TAX CREDITS[4]

Are there mechanisms in place to help employers pay for the new mandated paid leaves?

The FFCRA also provides for new tax credits to eligible employers to offset new costs associated with public health emergency FMLA leave and with emergency paid sick leave.  The tax credits are allowed against the employer portion of Social Security taxes.  The refundable tax credit is equal to 100% of the qualified emergency paid sick leave paid as required by the law in each calendar quarter.  Similarly, eligible employers are also entitled to a refundable tax credit equal to 100% of the qualified public health emergency FMLA leave as required by the law.

Paid leave offered in addition to the legal mandated leave does not qualify for the tax credits.

Do these tax credits apply to government employers?

The sections of the FFCRA that provide for tax credit-based relief include the following statement regarding the availability of the benefit to certain governmental employers:

This credit shall not apply to the Government of the United States, the government of any State or political subdivision thereof, or any agency or instrumentality of any of the foregoing.

As such, these tax credits are not available to local public agencies, many of whom have not opted into Social Security.

For citations please click here.

As most of us know, the primary purpose of the Brown Act (codified in Government Code 54950 et seq.) is to provide that all meetings of a legislative body of a local agency are open and accessible to the public so that the public can attend and participate. In an effort to keep up with technology, the Brown Act specifically allows a legislative body to use any type of teleconferencing to meet and perform other functions. “Teleconference” is defined in the Brown Act as “a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.” (Government Code 54953(b)(4).)

During this period of local emergency due to COVID-19, we are all trying to respond to the crisis and remain in compliance with the law, including the Brown Act. Governor Gavin Newsom has issued several Executive Orders relating to COVID-19, including some which waive or suspend certain provisions of the Brown Act. The following is a summary of those Executive Orders that suspend or waive various requirements of the Brown Act and some guidance on what to be thinking about as some jurisdictions move to a more “virtual” meeting.

Executive Order N-25-20 (“25-20”)

25-20 was signed by Governor Newsom on March 12, 2020, ten days after the Governor issued a State of Emergency. Governor Newsom invoked his authority under the State Constitution and Government Code sections 8567, 8571 and 8572 to issue 25-20, which among other things, suspends various provisions of the Brown Act and the Bagley-Keene Act (state’s equivalent of the Brown Act), to authorize a local legislative body or state body to hold public meetings via teleconferencing and to make public meetings accessible telephonically or otherwise electronically to all members of the public seeking to attend and to address the body during the period in which measures to promote social distancing are in place. Paragraph 11 of 25-20 specifically waives the requirement in the Brown Act that a quorum of the legislative body be physically present at the location of the meeting as well as other notice requirements relating to teleconferencing on the conditions that 1) each legislative body must give advance notice of each public meeting in accordance with those timeframes prescribed in the Brown Act; and 2) the notice must provide at least one publicly accessible location from which members of the public can observe and offer public comment at the meeting.  As you will see below, while paragraph 11 of 25-20 has been withdrawn and superseded by Executive Order N-29-20, these provisions relating to waiver of quorum and noticing requirements are contained in Executive Order N-29-20.

Executive Order N-29-20 (“29-20”)

29-20 was signed by Governor Newsom on March 17, 2020, just fifteen days after the State of Emergency and three days before he issued Executive Order N-33-20 (“Stay At Home Order”). Paragraph 3 of 29-20 replaces paragraph 11 of 25-20 and continues to authorize a local legislative body or state body to hold public meetings via teleconferencing and to make public meetings accessible telephonically or through some other electronic means to all members of the public seeking to attend and to address the body during the period in which measures to promote social distancing are in place. However, 29-20 goes beyond 25-20 by providing that the legislative body “…need not make available any physical location from which members of the public may observe the meeting and offer public comment” so long as the legislative body allows telephonic or other electronic participation. Additionally, any legislative body conducting a meeting via teleconferencing must do the following: 1) implement a procedure for receiving and swiftly resolving requests for reasonable accommodation, consistent with the Americans with Disabilities Act (“ADA”); and 2) advertise the procedure for public participation and identify that procedure in each agenda.

29-20 is an important evolution in the tools that the Governor has provided to local legislative bodies during this period of emergency to enforce social distancing requirements and encourage people to stay at home. While 29-20 does not mandate that the legislative body exclude the public, it does allow the legislative body to take action to support the Governor’s Stay at Home Order, which generally prohibits travel and gatherings, by closing the meeting to the physical attendance of the public. If a local legislative body decides to continue to allow the public to physically attend the meetings, every effort to comply with social distancing requirements should be made, including requiring that everyone is at least 6 feet away from each other.

Executive Order N-35-20 (“35-20”)

35-20 was signed by Governor Newsom on March 21, 2020. Paragraph 2 of 35-20 waives certain restrictions on serial meetings and other provisions of the Brown Act and the Bagley-Keene Act to allow all members of a local legislative body or state body to receive simultaneous informational updates relevant to the declared emergency (including, but not limited to, updates concerning the impacts of COVID-19, the government response to COVID-19, and other aspects relevant to the declared emergency) from federal, state, and local officials, and allows members of the body to ask questions of those federal, state, and local officials, in order to stay apprised of emergency operations and the impact of the emergency on their constituents. 35-20 specifically prohibits the body from taking any action on, or discussing amongst themselves, any item of business that is within the subject matter jurisdiction of the legislative body without complying with otherwise applicable requirements of the Brown Act or the Bagley-Keene Act. 35-20 also leaves intact paragraph 3 of 29-20, which authorizes a local legislative body or state body to hold public meetings via teleconferencing, as discussed above.

35-20 balances the need, during this period of emergency, to disseminate information efficiently and quickly to a legislative body with the public’s right to access and attend a meeting of the legislative body. However, while 35-20 does not clarify the distinction between “ask[ing] questions of [] federal, state, and local officials” (which is permitted) and “discuss[ing] amongst themselves” (which is prohibited), this suspension of these Brown Act restrictions should be construed narrowly and if there is a question that is more of a topic of discussion, then the default should be to save that discussion for a public meeting.

Guidance for Future Virtual Meetings

In light of the foregoing Executive Orders, many cities and counties are starting to use teleconferenced meeting platforms that are commonly used for webinars, which allow the public to see the legislative body on a screen and allows comments to be easily typed in as the meeting progresses. Whatever method is used, there needs to be some consideration of how other areas of the Brown Act will be adhered to. Below are some areas of the Brown Act that may need to be addressed during a teleconferenced meeting:

 1)      ADA Compliance: In order to comply with 29-20, develop a procedure for receiving requests for reasonable accommodation. Consider what is offered currently during meetings and what may need to improve to allow people with disabilities access during teleconferenced meetings. If you plan to use a remote conferencing service for online meetings, verify that the platform can satisfy ADA requirements.

2)      Public Access: Letting people know how to access the meeting and submit public comments will be critical. Developing an easy step-by-step process to access the meeting electronically or telephonically and how the public will be able to submit public comments will be critical. Posting that process on the website in multiple locations and on the agenda for each meeting will not only comply with 29-20 but will ensure transparency. Consider also offering a tutorial via telephone or webinar to walk members of the public through the access process, this type of education may be helpful for those members of the public who may be challenged or confused by the new “virtual” meeting approach.

3)      Public Comment: If people are participating via telephone or electronic means, establishing a process for how those comments will be included in the record will be necessary. If the local government has a comment card that is requested to be filled out prior to public comment, consideration should be given to how that card can be filled out if the comment is submitted electronically or over the phone. Also, if the electronic comments are received before the item is called or during the meeting, someone should be designated to read those comments into the record. If multiple people are participating via telephone or in real time via a webinar type platform, establishing an order for the public comments will be helpful and ensure a smooth and uninterrupted public comment period.

4)      Submission of Documents at the Meeting: Oftentimes staff or a member of the legislative body will show up to the meeting with a document to share with the entire body. If the meeting is a “virtual” meeting, it may be difficult to share this document with the entire body and the public. Government Code section 54957.5(c) requires that those documents distributed during a public meeting shall be made available for public inspection at the meeting, if prepared by the local agency or a member of its legislative body, or after the meeting, if prepared by some other person, and these documents may need to be made available in alternative formats upon request by a person with a disability. Normally, this would mean making copies of the document and placing those copies at the back of the room. During a teleconferenced meeting that is not physically accessible to the public, this is not possible. As such, a procedure should be developed to assure those documents submitted by staff or a member of the legislative body are made available online and accessible to the public during the meeting.

5)      Roll Call Votes: None of the Executive Orders waive the requirement for roll call votes during a teleconferenced meeting, which are required pursuant to Government Code section 54953(c)(2). Thus, if one of the members of the legislative body is calling in or appearing via electronic means, then any vote should be taken via roll call.

On March 4, 2020, Governor Gavin Newsom declared a state of emergency due to the COVID-19 pandemic. On March 12, 2020, the Governor issued Executive Order N-25-20, which, among other provisions, immediately suspended certain laws that limit work hours and impose waiting periods for retired annuitants. In a subsequent Executive Order N-35-20 issued on March 22, 2020, the Governor expressly recognized that governmental entities must have sufficient staffing to adequately address the impacts of COVID-19, and made clear that the suspension of specific retired annuitant laws applies to all local public agency employers as well as the state.

On March 18, 2020, the California Public Employees’ Retirement System (CalPERS) issued Circular Letter 200-015-20 to inform all CalPERS employers of the impact of Executive Order N-25-20 on CalPERS retirees employed as retired annuitants with any CalPERS employer. CalPERS emphasized that the Governor’s emergency proclamation applies to work performed by a retired annuitant hired “to ensure adequate staffing during the state of emergency.” In a separate circular letter issued the next day, CalPERS further clarified that the lifted rules apply to hiring retirees working to ensure adequate state staffing to expedite emergency response and recovery, but can also apply to existing retired annuitants if they are redirected for this purpose.

In accordance with the Executive Orders and the guidance issued by CalPERS, the following changes to the employment of CalPERS retired annuitants are effective March 4, 2020 and until the state of the emergency is lifted:

• No Work Hour Limitation. The work hour limitation of 960 hours per fiscal year under Government Code sections 21224(a) and 7522.56(d) is suspended. Any hours worked by a retired annuitant to ensure adequate staffing during the state of emergency will not be counted towards the 960-hour per fiscal year limit.
• No 180-Day Waiting Period. The 180-day break in service requirement under Government Code section 7522.56(f) is suspended. The related restriction on the acceptance of retirement incentives (“golden handshakes”) under Government Code section 7522.56(g) is also suspended.
• No 60-Day Separation in Service. For retired annuitants who have not attained normal retirement age, the 60-day separation in service requirement under Section 586.2(c) of Title II of the California Code of Regulations is suspended. However, there is no suspension of the rule that prohibits any predetermined agreement to work after retirement between an employer and an impending retiree who has not yet attained normal retirement age.
• New Notice Requirement. CalPERS employers must notify the director of the California Department of Human Resources of any individual employed pursuant to these waived requirements. The notification should be sent to CAStateofEmergency@calhr.ca.gov.

It is important to note that all of the other restrictions on working after retirement continue to apply. This includes the rate of pay limit on compensation and the prohibition against providing the retired annuitant with any additional form of compensation or benefit. Employers must also continue to enroll and report retired annuitants to CalPERS.

Although the Governor’s Executive Order suspended the laws that mandate reinstatement from retirement when not complying with the rules on post-retirement employment, CalPERS did not directly address the reinstatement issue in its Circular Letter. It is likely that reinstatement is temporarily suspended only for the retired annuitants whose employment otherwise complies with the applicable restrictions during this state of emergency. Employers should continue to comply with all retired annuitant requirements, and apply the above waivers on work hours and waiting periods only as appropriate to ensure adequate staffing during the state of emergency.

In response to state and local COVID-19 teleworking and social distancing protocols, the Authority has suspended all instructor-led classroom training indefinitely. These will be rescheduled at a future time. Members are encouraged to take advantage of the Authority’s E-Learning Training. E-learning Training offers members free learning on-demand, anytime or anywhere. Training content is delivered online through a personal computer.

The Authority has developed several new e-learning safety courses that comply with Cal/OSHA safety requirements. Many of these safety trainings are required annually by Cal/OSHA and your agency may find that these serve as a practical way to provide training to your employees.

The new courses include:

• Asbestos
• Bloodborne Pathogens and Biohazards
• Fire Extinguisher
• Lead Awareness
• Hearing Conservation
• Heat Illness
• Safe Driving
• Safe Driving of Commercial Vehicles

In addition to the training listed above, the Authority offers over 300 e-learning, short take training videos, and other online content available to members via myJPIA Training. The Authority is developing additional online training courses as a resource to members.

For additional information about the Authority’s training content or how we can help your agency with training opportunities during this challenging time, please contact Ryan Thomas, Training and Loss Control Specialist.

Through a homelessness avoidance program rooted in the proverb, “an ounce of prevention is worth a pound of cure,” the City of Monrovia has helped dozens of residents and their families keep their homes.

“The need for housing is greater than ever before,” said City Manager Dylan Feik. “Our community is striving to be as efficient as possible with the limited funds we have.”

Monrovia, a community of approximately 40,000 residents in the foothills of the San Gabriel mountains, currently invests approximately $670 per person to prevent residents from becoming homeless. In contrast, the National Alliance to End Homelessness estimates the cost to address homelessness is $35,000 per person.

The city’s current program is based on The City of Monrovia Plan to Prevent and Combat Homelessness, adopted in July 2018. The plan formalizes efforts that began in 2014 when the city launched the Homelessness and Park Conduct Committee in response to public demand.

“Our residents noticed a group of homeless individuals congregating in the heart of our Old Town and it drew community concern,” said Community Services Director Tina Cherry. “Our community members have been involved in addressing homelessness from the start. Every one of our goals comes from the place of, ‘How can we help?’”

The Plan to Prevent and Combat Homelessness details six goals:

1. Be relentless in our contact with anyone suffering from homelessness
2. Expand community coordination in support of ending homelessness
3. Promote the use of the new Coordinated Entry System (CES)
4. Develop educational materials to promote health and safety
5. Develop a Monrovia Centric Directed Giving program
6. Develop a Housing Displacement Response Plan

Focus on Prevention

The sixth goal distinguishes the City of Monrovia’s approach, according to Cherry. Through the Housing Displacement Response Plan, the city trains community advocates to help identify families and individuals on the verge of homelessness, connect them with services, and provide follow-up support.

“The key factor is having the family or individual connect with an advocate to develop a sustainability plan. That helps ensure that the one-time investment yields a long-term benefit,” Cherry said.

Since it began 18 months ago, the program has helped 23 families avoid displacement from their homes, 31 youth avoid displacement from their schools, and 27 adults and seven seniors avoid losing their homes.

Risk Management Principles

The City of Monrovia’s Plan to Prevent and Combat Homelessness, as well as related resources like their homeless response kit, demonstrates a commitment to risk management measures, according to California JPIA Senior Risk Manager Maria Galvan, who is the city’s assigned risk manager. “By taking preventive steps and through early intervention, Monrovia is mitigating the impacts of homelessness before they escalate,” Galvan said. “The city’s incorporation of community outreach and education is helping those in need.”

In addition to the Housing Displacement Response Plan, Galvan points to initiatives such as efforts to maintain safe and clean parks, deter crime, and promote health and safety. The city launched a “Populate the Park with Programs” initiative to schedule additional programming at parks to promote active, safe environments and a Park Watch Program, similar to a Neighborhood Watch Program. The city placed security cameras on the exterior of public buildings to deter crime and enable immediate reporting. And when faced with potential public health crises such as the 2018 news of a Hepatitis A outbreak reaching Los Angeles County, the city offered free vaccines to homeless individuals as well as city staff who interact with the public.

Outreach and engagement are also critical to addressing potential concerns before they escalate. The City of Monrovia Police Department Community Activist Policing Bureau conducts regular outreach with individuals experiencing or at risk of homelessness and shares a resource guide that they developed in partnership with service providers. In January 2019, the city released a new Homeless Response Kit: Resources to Prevent and End Homelessness, outlining tangible ways community members can help address homelessness issues. Resources include information on the Coordinated Entry System, phone numbers for local service providers and tools for individuals to prevent and combat homelessness in Monrovia.

The city also remains committed to increasing housing supply for all residents. The city council has approved over 1,717 new residential housing units in the city, representing more than a 15 percent increase in citywide housing units that will help address the incredible demand.

Authority Member Resources

Authority members have access to training on how to best address homelessness-related issues, including “Encountering and Serving Individuals Experiencing Homelessness.” For additional information, Authority members are encouraged to contact their assigned Risk Manager.

“There are lots of reasons why people can be on the verge of homelessness,” said Cherry. “Because of our work on the Plan to Prevent and Combat Homelessness and with support from the California JPIA, Monrovia is now better informed about how we can best help.”

A recent Ninth Circuit Court of Appeals decision, Calvary Chapel Bible Fellowship v. County of Riverside 948 F.3d 1172 (9^th Cir. 2020), has affirmed the effectiveness of non-discriminatory zoning ordinances. This case reminds us that zoning ordinances that affect religious institutions should be drafted in a neutral, non-discriminatory manner to ensure that they conform to the equal terms provision of RLUIPA.

In this case, Calvary Chapel Bible Fellowship (“Calvary Chapel”) made a facial challenge to a Riverside County zoning ordinance, alleging that the ordinance violated RLUIPA. Calvary Chapel claimed that the ordinance treated religious assemblies and institutions on less than equal terms with nonreligious assemblies and institutions because the zoning ordinance prevented Calvary Chapel from using its property for religious practices. The district court granted summary judgment for the county on the grounds that the ordinance allowed for both religious and secular assemblies to construct “special occasion facilities,” facilities that are used for a specified period of time in exchange for compensation (i.e. they are rented out). The Ninth Circuit affirmed.

In 1996, Calvary Chapel, a non-denominational Christian church, purchased a plot of land in the Citrus-Vineyard (C/V) Zone of the Temecula Wine Country of the county. In 1999, the county enacted more restrictive zoning for the C/V Zone in order to “encourage agricultural cultivation, vineyards, and wineries that would preserve the rural lifestyle, wine-making atmosphere and long-term viability of the wine industry.” The new C/V Zone removed religious assemblies from the list of permissible uses but allowed for certain other permissible uses, such as 18-hole golf courses, country inns, and special-use facilities to be built upon approval of a plot plan. Calvary Chapel continued to operate as a legal non-conforming use after the 1999 zoning ordinance amendments.

Unaware of these changes, Calvary Chapel purchased an additional plot of land in the C/V Zone in 2009, hoping to construct a larger sanctuary and a special use facility for weddings, among other improvements. Calvary Chapel then discovered the C/V Zone designation and asked the county to amend it to permit the construction of a sanctuary. Although the county tried various ways to accommodate Calvary Chapel, a citizen group challenged the county’s efforts to rezone Calvary Chapel’s property. The county also began developing the Wine Country Community Plan (“WCCP”), which encompassed several zones in the “Wine Country” Zones of the county which included the C/V Zone.

Calvary Chapel made various requests to the county to amend the zoning in the WCCP and C/V Zone but to no avail. Calvary Church ultimately sued the county, alleging that the county’s zoning ordinance violated RLUIPA’s equal terms provision, which provides that “no government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” (42 U.S.C. § 2000 cc(b)(1).)

On appeal to the Ninth Circuit, the court’s analysis focused primarily on whether the C/V and Wine Country Zones violate RLUIPA’s equal terms provision. After reviewing the text of the zoning ordinance, the court found that nothing in the text of ordinances prevented Calvary Chapel from constructing a special occasion facility and using it as a place of worship, so Calvary Chapel failed to establish a prima facie violation of the RLUIPA. As this was a facial challenge, the court only considered the text of the zoning ordinance, not its application and found that on the face of the ordinance secular and religious places of assembly are treated the same and permitted in the C/V Zone only if they meet the requirements of a “special occasion facility.” Churches and other houses of worship are permitted in the C/V Zone if, at some point, they rent their facilities out in return for compensation, in addition to meeting the other zoning requirements. Nothing in the text of the ordinance prevents churches from holding regular worship services or other religious assemblies in their special occasion facilities.

Calvary Chapel also argued on appeal that if religious assemblies were permitted in the C/V Zone as special occasion facilities, the county violated RLUIPA’s nondiscrimination provision by “needlessly” requiring it to apply for a text amendment. The court declined to consider Calvary Chapel’s nondiscrimination claim because the court determined it had not been raised at the trial court level.

Note: given the impact of COVID-19 on all aspects of our personal and business lives, it is anticipated that the legislative year will be significantly scaled back. The information below was prepared before the legislature suspended all work until April 13. Legislative leaders in either chamber can decide to reconvene. And they can extend the recess if necessary.

The Authority continues to track two-year bills as the second year of the 2019-20 legislative session begins to gain momentum. The bills listed below are currently inactive, but they may be acted on during this second year of the 2019-20 legislative session. Many of these bills are expected to go through revisions as the legislative session continues, but below is a first look at some bills that may affect your agency should they pass.

AB 680 (Chu). Public safety dispatchers: mental health training.

Position: Support

Summary: This bill would require the Commission on Peace Officer Standards and Training (POST), on or before January 1, 2021, to develop mental health training courses for state and local public safety dispatchers that cover specific topics. These topics include recognizing indicators of mental illness, intellectual disabilities, or substance use disorders, and conflict resolution and de-escalation techniques. The bill would require POST to develop these courses in consultation with specified groups and individuals.

The Authority supports this bill, which would provide dispatchers with valuable training to help identify a mental health crisis and inform law enforcement how to appropriately approach the situation on the ground and provide important health intervention procedure for the person in crisis.

AB 1107 (Chu). Workers’ compensation.

Position: Oppose

Summary: Existing law requires each employer to establish a utilization review process to review and approve, modify, or deny treatment recommendations and establishes an independent medical review process to resolve disputes over a utilization review decision. Existing law also establishes the Workers’ Compensation Appeals Board to exercise all judicial powers vested in it, including workers’ compensation proceedings for the recovery of compensation.

This bill would exclude a final determination of the administrative director pursuant to independent medical review (IMR) regarding conclusive evidence that medical treatment was unreasonably delayed or denied.

The Authority is opposed to this bill, which would eliminate statutory language saying an IMR decision that overturns the utilization review decision shall not be considered conclusive evidence of an unreasonable denial of medical benefits.

AB 1190 (Irwin). Unmanned aircraft: state and local regulation: limitations.

Position: Support

Summary: This bill would also authorize a local agency to adopt regulations to enforce FAA regulations regarding the operation of unmanned aircraft systems and would authorize local agencies to regulate the operation of unmanned aircraft and unmanned aircraft systems within their jurisdictions, as specified. The bill would also authorize a local agency to require an unmanned aircraft operator to provide proof of federal, state, or local registration to licensing or enforcement officials. The bill would authorize a local entity to designate a recreational operating area for unmanned aircraft operation.

The Authority supports this bill. The bill would immunize a local entity that designates such a recreational area from liability for injury or damage associated with unmanned aircraft operation, if specified signage is posted. The bill would define terms for purposes of these provisions.

SB 266 (Leyva). Public Employees’ Retirement System: disallowed compensation: benefit adjustments.

Position: Oppose

Summary: In September 2019, SB 266 passed both houses (the Assembly and the Senate). However, the bill was withdrawn before it reached the Governor’s desk. The withdrawal may have been partially attributed to staunch opposition from various entities, including local government agencies.

The Authority is opposed to SB 266, which would require public agencies to directly pay retirees and/or their beneficiaries 100% of overpayments stemming from disallowed retirement benefits using general fund dollars. This bill does not address placing a legal responsibility on CalPERS to ensure that compensation calculations are done correctly on the front end prior to a retiree receiving pension. Furthermore, this bill opens the door for pension spiking.

SB 336 (Dodd). Transportation: fully-automated transit vehicles.

Position: Support

Summary: Existing law establishes regulations for the operation of an autonomous vehicle on public roads for testing purposes by a driver who possesses the proper class of license for the type of vehicle being operated if the manufacturer meets prescribed requirements. Existing law imposes various requirements on transit operators.

The Authority supports SB 336. This bill would require a transit operator, until January 1, 2025, to ensure each of its fully-automated transit vehicles is staffed by at least one of its employees, who has had specified training, while the vehicle is in service. The bill would require a transit operator that deploys a fully-automated transit vehicle to report the results of that deployment to the Legislature on or before March 31, 2025.

SB 416 (Hueso). Employment: workers’ compensation.

Position: Oppose

Summary: Existing law establishes a workers’ compensation system to compensate employees for injuries sustained arising out of and in the course of their employment. Existing law designates illnesses and conditions that constitute a compensable injury for various employees, such as members of the Department of the California Highway Patrol, firefighters, and certain peace officers. These injuries include, but are not limited to, hernia, pneumonia, heart trouble, cancer, meningitis, and exposure to biochemical substances, when the illness or condition develops or manifests itself during a period when the officer or employee is in service of the employer, as specified.

The Authority opposes SB 416. This bill would expand the coverage of the above provisions relating to compensable injuries to include all persons defined as peace officers under certain provisions of law, except as specified. This bill would significantly expand eligibility for workers’ compensation presumption benefits that are limited in current law only to certain categories of peace officers.

The Authority will continue to track this second year of the 2019-20 legislative session, especially as new bills continue be analyzed for their potential impact to members.