In this episode of The Workplace podcast, CalChamber employment law expert Matthew Roberts and CalChamber HR Adviser Ellen Savage discuss some of the employment law issues employers ask about on the Labor Law Helpline.
The CalChamber Labor Law Helpline service provides CalChamber members at the preferred level or higher with access to human resources advisers who provide a better understanding of employment-related laws, regulations, court cases and administrative procedures.
The answers to the labor law questions discussed in this podcast should be considered informational and don’t constitute legal advice.
Leave of Absence
Recently, Savage received an unusual question on the Helpline: an employer wanted to know if they were legally required to grant an employee’s request for a personal 3-month leave of absence for unspecified reasons. Usually, Savage says, employees request extended leaves of absence for medical conditions. When asked the reason behind the leave request, the employee said he had taken on another job, but didn’t want to quit his current job in case the new job didn’t work out.
“Career enhancement” is not a qualified reason for a protected leave of absence under California law, so employers are not legally required to grant such requests, Savage says.
When an Employee Moves Out of State
An employment law issue arising out of the COVID-19 pandemic is that people who were working remotely decided to move to a cheaper area, sometimes moving outside of the state and even outside of the country, Roberts says. Employers have been wanting to know how California labor laws apply to out-of-state employees.
Savage replies that employers may think that because their company is located in California, the company should follow California labor laws. This is not the case.
If a company’s employees reside outside of California, the company is now a multistate or multinational employer. The company must now follow the laws in the state or country where the work is being performed, Savage explains.
It is important that employers have someone in the company who understands the laws and taxes that apply in these regions and is able to keep track of everything before the company decides to allow employees to work outside California, she stresses.
And oftentimes, employers don’t even know a remote worker has moved out of state, until the worker requests to update their contact address with HR months later, Roberts points out. So, if an employer decides to keep employing that out-of-state worker, the employer needs to make sure they are getting the proper resources to follow the new state’s laws.
Terminating Remote Employees
California law mandates that employers give workers their final paychecks at the moment and location of their termination, Savage explains.
The state’s labor laws were written long ago—long before computers facilitated remote work. So employers must still ensure that terminated remote employees receive their final check on their termination date, she stresses.
One way employers can meet these requirements is by mailing the final paycheck by courier along with a letter of termination, satisfying the time and place requirement. Some employers, however, don’t want to announce the termination by a letter, so some opt to speak to the employee over the phone and mail a paycheck that includes the waiting time penalty. This penalty covers one full day’s wages for each day the paycheck is late. So if it will take FedEx two days to deliver the paycheck, then the employer could consider paying two extra days’ wages to cover the penalty. Although under the law only the California Labor Commissioner can require payment of the penalty, this practice may create a disincentive for the employee to file a claim.
While sending the final paycheck through direct deposit may seem like a good idea, Savage discourages doing so because it can be unreliable, with the bank either sending the funds a day early (which alerts the worker that they may be terminated) or sending the funds a day late (which would incur a waiting time penalty).
Lastly, Savage warns that employers should not ask employees who have been terminated to pick up their final check. Under law, the worker is under no obligation to come and pick up the check, so it can cost employers more in waiting time penalties.
Work Mandated Vaccines
A common question employers ask in the Helpline is whether their company can have a mandated COVID-19 vaccination policy. And Savage answers that yes, employers may establish a mandated vaccination policy as long as it allows for religious or medical accommodations.
If an employee refuses to abide by the vaccination policy and does not qualify for a religious or medical exemption, the employer can terminate or place the employee on unpaid leave.
If an employee seeks a religious exemption, employers cannot question the validity of that worker’s religious beliefs unless there is “objective evidence” that the worker is not telling the truth. Because this is hard to do, employers should take religious accommodation requests at face value, Savage says.
Determining whether someone meets a medical or religious qualification is only the first step. Step Two, Roberts says, is determining whether there is a reasonable accommodation available for the employee. This accommodation is determined on a case-by-case basis where the employer must look at what the worker does and its business operations and think about any health and safety concerns.
There is a lot that goes into whether a reasonable accommodation can be provided, and this is where the employer should focus their energy. Roberts urges employers to consult with legal counsel to “navigate through these waters because they’re very difficult waters to navigate through.”