COVID-19 Resources for California Employers

LAST UPDATED: October 22, 2020 

CDF Labor Law LLP assembled a task force of attorneys across California to address California employment-related issues that employers are facing in the wake of the COVID-19 pandemic.

This content will be continually updated with information [questions that appear in red have been recently updated] that California employers need to address workplace issues and questions that arise during the COVID-19 situation.  Our goal is to provide you with the information to help you make effective business decisions and to assist you with your need to consult with counsel.  This Resource Page provides an overview of a specific developing situation.  It is not intended to be, and should not be construed as, legal advice, nor does the receipt of it constitute an attorney-client relationship.

TABLE OF CONTENTS


RETURN TO WORK

Governor Newsom has announced plans for California to return to the new “normal” in a matter of weeks.  Below is a collection of resources to help guide California employers recalling employees from furlough and bringing employees back to the workplace after Work From Home for many weeks.

Issues Related to Return to Work

Q:  What are the face-covering requirements in California?

A:  Governor Newsom signed an Executive Order on June 18, 2020 broadly requiring people to wear a face covering when outside the home.  Here are the rules most applicable to employers:

Face masks are required while working when:

  • Interacting in-person with the public;
  • Working in any space visited by the public, regardless of whether anyone is present;
  • Working in any space where food is prepared or packaged for sale or distribution;
  • Working in or walking through common areas, such as hallways, stairwells, elevators, and parking facilities;
  • In any room or enclosed area where other people are present when unable to physically distance (i.e. six feet or separation or impervious barriers between employees required); and
  • Driving or operating any public transportation, taxi, or private car service when passengers are present.

Masks are required while outdoors when maintaining a physical distance of six feet from persons who are not members of the same household is not feasible, and inside of, or in line to enter, any indoor public space.

For all of our struggling restaurant clients and friends: as noted below, you do not need to close back down, and masks are not required for customers while dining in a restaurant if six feet of separation is maintained from other groups (or proper impervious barriers have been installed).  Customers must wear masks upon entering, and staff must wear masks at all times while working (but not gloves unless they are clearing the table or involved in cleaning/disinfecting).

The following individuals are exempt from wearing a face covering:

  • Children aged two and under;
  • Persons with a medical, mental health, or developmental disability that prevents wearing a face covering;
  • Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication;
  • Persons for whom wearing a face covering would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines;
  • Persons who are obtaining a service involving the nose or face for which temporary removal of the face covering is necessary to perform the service;
  • Persons who are seated at a restaurant or other establishment that offers food or beverage service, while they are eating or drinking, provided that they are able to maintain a distance of at least six feet away from persons who are not members of the same household or residence;
  • Persons who are engaged in outdoor work or recreation such as swimming, walking, hiking, bicycling, or running, when alone or with household members, and when they are able to maintain a distance of at least six feet from others; and 
  • Persons who are incarcerated. Prisons and jails, as part of their mitigation plans, will have specific guidance on the wearing of face coverings of masks for both inmates and staff.

The Governor’s Order essentially negates any existing county or local orders that said masks were not required, or that otherwise conflict with the state Order.

Employers – if you were not already doing so, you now need to provide masks or reimburse the cost if employees will have to provide them to wear them at work (which almost everyone will to some extent – at least while entering and walking through common areas and using the bathroom).  It is also a good idea to distribute the Guidance from the California Department of Public Health on how to properly wear face coverings, which can be found here.

Hopefully, this new Order will not impose too much of a burden on employers who likely just re-opened, as many have already taken steps to make sure employees are six feet apart (or erected barriers), which allows them to work without masks at their workstation (but they will have to wear them in the bathroom, breakroom or walking in common areas). 

You can find more information for the California Department of Public Health here.

Q.  Can I require employees to take a COVID-19 test as a condition of entering the workplace?

A.  Yes.  On April 23, 2020, the EEOC updated its COVID-19 employer guidance to address this question.  The EEOC stated that required testing is permissible, reasoning that such testing is job-related and consistent with business necessity and that an employee with Covid-19 would pose a direct threat to the workplace.  For these reasons, the EEOC concluded that employers may require such testing before allowing employees to enter the workplace.  The EEOC cautions employers to first “ensure” that required testing is reliable and accurate.  To that end, the EEOC suggests that employers consult FDA, CDC, and other public health agency guidance on this subject.  California’s DFEH has not yet weighed in on the issue of required Covid-19 testing, but it seems likely the DFEH will follow the lead of the EEOC on this issue (as it previously did on the issue of whether temperature checks are permissible).  Employers conducting required Covid-19 testing are cautioned to maintain the confidentiality of test results, to compensate employees for all time and expense associated with participating in required testing, and to make sure that their CCPA notices disclose to employees that health information will be collected as part of the company’s efforts to provide a safe workplace and prevent individuals with Covid-19 from being in the workplace while potentially contagious.

Q.  Did furloughed employees accrue vacation and paid sick leave while on furlough?

A.  In most cases, no.  Vacation, paid time off (PTO), and paid sick leave are employee benefits that employees accrue and earn as time is worked.  As such, employees who are not working are not accruing or earning those benefits – unless applicable employee policies, collective bargain agreements, or employment agreements require otherwise.

That said, employers should be aware that the California Healthy Workplaces, Healthy Families Act of 2014 requires employers to reinstate all accrued, unused paid sick leave to employees who are re-hired within 12 months of being terminated.  As such, to the extent that employees had any unused accrued paid sick leave banked prior to being furloughed, which remained unused during furlough, that accrued unused paid sick leave must be returned to the employees’ bank and employees must be allowed to use such paid sick leave upon their return from furlough.

Q.  Are employees who have taken leave under the FFCRA entitled to seek additional leaves due to the upcoming birth of a child or other types of medical needs?

A.  Maybe.  The FFCRA amended the Family Medical Leave Act (FMLA) so that eligible employees can use their FMLA allowance (12 workweeks per 12-month period), between April 1 and December 31, 2020, if they are unable to work (or telework) because they are caring for a child whose school or day care has closed due to the Coronavirus public health emergency.  The FFCRA did not change the FMLA’s maximum leave entitlement of a total of 12 workweeks during any 12-month period (or 26 workweeks for servicemember family leave).  As such, an employee who has taken leave under the FFCRA may also be entitled to take leave under the FMLA’s other qualifying provisions, such as for the birth of a child, as long as the employee did not already exhaust their total 12-month leave allowance.

California employers should beware that even if an employee has exhausted their 12-month allowance of leave under the FMLA, they may be entitled to additional leave under the California Family Rights Act.

Lastly, employers may be obligated to provide leave as an accommodation to employees with disabilities or medical conditions under the Americans with Disabilities Act and state counterparts such as the California Fair Employment and Housing Act.  Those leaves should be considered on a case-by-case basis.

Q.  If an employee’s position was eliminated while the employee was out on FFCRA leave, does the employer have to provide an equivalent position to the employee?

A.  No.  Employees on FFCRA leave are not protected from employment actions that would have happened regardless of whether they were on leave.  As such, if an employee’s position was going to be eliminated regardless of leave status, they do not have to be reinstated to the same or equivalent position.  Employers bear the burden of proving the position would have been eliminated whether or not the employee was on leave.  As such, employers should work with counsel and carefully justify and document the business reasons for not reinstating employees who have taken leave under the FFCRA.

COVID-19 Considerations For Injury Illness Prevention Program

Q.  Does an employer need to update their IIPP to take COVID-19 into consideration?

A.  Yes.  Every employer’s IIPP should be flexible, and is governed by what is known in the OSHA-world as a “performance standard.”  The performance standard allows employers to create and tailor their IIPPs as necessary to effectively guard against hazards in each particular place of employment.  Therefore, it would behoove employers to use this time to update, train, and guard against the risk of COVID-19 in their workplace.  For more information about IIPPs, click here

Not only will this educate and protect your workforce creating higher morale, but should Cal/OSHA “come-a-knocking” after a complaint or COVID-19 exposure – you will be much better positioned to respond in confidence that your IIPP adequately addresses the hazard of COVID-19.

Q.  Other than updating our IIPP, is there anything else an employer should do on the IIPP front?

A.  Yes.  Training your workforce as to the new IIPP, maintaining records of the training and implementing the IIPP will insulate employers from Cal/OSHA citations.

Q.  What should be included in an IIPP?

A.  Cal/OSHA currently recommends that training, at a minimum, be provided on the following topics:

  • Cough and sneeze etiquette
  • Hand hygiene
  • Avoiding close contact with sick persons
  • Avoiding touching eyes, nose, and mouth with unwashed hands
  • Avoiding sharing personal items with co-workers (i.e. dishes, cups, utensils, towels)
  • Providing tissues, no-touch disposal trash cans and hand sanitizer for use by employees

https://www.dir.ca.gov/dosh/coronavirus/General-Industry.html

Cal/OSHA issued guidance to the agriculture and grocery store communities, recommending that physical distancing procedures be implemented to guard against the spread of COVID-19.  Therefore, while Cal/OSHA does not currently mandate physical distancing, given the CDC’s recommendations about physical distancing and Cal/OSHA’s directive to the agriculture and grocery sectors, a prudent employer will provide training as to physical distancing, too.  Click here for Cal/OSHA Grocery Store guidance and here for Cal/OSHA's Agriculture guidance.

For information on the most recent Cal/OSHA guidance, click here.

UPDATE:

On May 14, 2020, Cal/OSHA updated its IIPP guidance to include the following precautions (see link here):

  • Actively encourage sick employees to stay home.
  • Immediately send employees home or to medical care, as needed, if they have a frequent cough, fever, difficulty breathing, chills, muscle pain, headache, sore throat, or recent loss of taste or smell.
  • Ensure employees who are out ill with fever or acute respiratory symptoms do not return to work until both of the following occur:
    • At least three full days pass with no fever (without the use of fever-reducing medications) and no acute respiratory illness symptoms; and
    • At least 10 days pass since the symptoms first appeared.  
  • Provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 if required to by the Families First Coronavirus Response Act.
  • Ensure employees that return to work following an illness promptly report any recurrence of symptoms.
  • Encourage employees to telework from home when possible.
  • Practice physical distancing by canceling in-person meetings, using video or telephonic meetings, and maintaining a distance of at least 6 feet between persons at the workplace when possible.
  • Provide employees with cloth face covers or encourage employees to use their own face covers for use whenever employees may be in workplaces with other persons. Cloth face coverings are not personal protective equipment (PPE), but combined with physical distancing of at least six feet, they may help prevent infected persons without symptoms from unknowingly spreading COVID-19.

CDC recommends that the general public not use surgical masks or N-95 respirators so that these critical supplies are available to health care workers and first responders.

  • Avoid shared workspaces (desks, offices, and cubicles) and work items (phones, computers, other work tools, and equipment) when possible.
    • If they must be shared, clean and disinfect shared workspaces and work items before and after use.
  • Establish procedures to routinely clean and disinfect commonly touched objects and surfaces such as elevator buttons, handrails, copy machines, faucets, and doorknobs. Surfaces should be cleaned with soap and water prior to disinfection. These procedures should include:
    • Using disinfectants that are EPA-approved for use against the virus that causes COVID-19.
    • Providing EPA-registered disposable wipes for employees to wipe down commonly used surfaces before use.
    • Following the manufacturer’s instructions for all cleaning and disinfection products (e.g., safety requirements, PPE, concentration, contact time).
    • Ensuring there are adequate supplies to support cleaning and disinfection practices.
  • If an employee is confirmed to have COVID-19 infection:
    • Inform employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Please see further information on protecting the privacy of persons with COVID-19 from the California Department of Fair Employment and Housing.
    • Temporarily close the general area where the infected employee worked until cleaning is completed.
    • Conduct deep cleaning of the entire general area where the infected employee worked and may have been, including breakrooms, restrooms and travel areas, with a cleaning agent approved for use by the EPA against coronavirus. It should ideally be performed by a professional cleaning service.
      • Any person cleaning the area should be equipped with the proper PPE for COVID-19 disinfection (disposable gown, gloves, eye protection, mask, or respirator if required) in addition to PPE required for cleaning products. See below for further information on PPE.
  • Advise employees to avoid non-essential travel if possible and check CDC’s Traveler’s Health Notices prior to travel.

For employers in industries such as retail sales or service industries, to protect those employees with frequent contact with the public, arrange work and implement measures that account for the possibility that the public is a possible contamination source, including:

  • Conduct even more frequent cleaning and disinfection of surfaces touched by the public such as credit card machines, touch screens, shopping carts and doors.
  • Protect cashiers and other workers who have frequent interaction with the public with engineering controls such as Plexiglas screens or other physical barriers, or spatial barriers of at least six feet, if feasible.
  • If exposures to the general public cannot be eliminated with engineering controls, require or encourage customers to wear face coverings, which are mandatory in some jurisdictions.
  • Schedule work to allow frequent hand washing by employees handling items (cash, credit cards, merchandise, etc.) touched by members of the public.  Notably, Executive Order N-51-20 requires that employees working in food facilities (as defined by the California Retail Food Code) must be permitted to wash their hands every 30 minutes and additionally, as needed.
  • Enforce physical distancing by limiting the number of customers in retail space.
  • Ask customers to take precautions such as only touching items they intend to purchase, and provide hand sanitizer stations.
  • Provide workers handling items touched by the public with PPE (i.e., disposable gloves).

Cal/OSHA also has issued more detailed recommended training:

  • General description of COVID-19, symptoms, when to seek medical attention, how to prevent its spread, and the employer’s procedures for preventing its spread at the workplace.
  • How an infected person can spread COVID-19 to others even if they are not sick.
  • How to prevent the spread of COVID-19 by using cloth face covers, including:
    • CDC guidelines that everyone should use cloth face covers when around other persons.
    • How cloth face covers can help protect persons around the user when combined with physical distancing and frequent hand washing.
    • Information that cloth face covers are not protective equipment and do not protect the person wearing a cloth face cover from COVID-19.
    • Instructions on washing and sanitizing hands before and after using face coverings, which should be washed after each shift.
  • Cough and sneeze etiquette.
  • Washing hands with soap and water for at least 20 seconds, after interacting with other persons and after contacting shared surfaces or objects. As noted above, Executive Order N-51-20 requires that employees working in food facilities (as defined by the California Retail Food Code) must be permitted to wash their hands every 30 minutes and additionally, as needed.
  • Avoiding touching eyes, nose, and mouth with unwashed hands.
  • Avoiding sharing personal items with co-workers (i.e., dishes, cups, utensils, towels.
  • Providing tissues, no-touch disposal trash cans and hand sanitizer for use by employees.
  • Safely using cleaners and disinfectants, which includes:
    • The hazards of the cleaners and disinfectants used at the worksite.
    • Wearing PPE (such as gloves).
    • Ensuring cleaners and disinfectants are used in a manner that does not endanger employees.

Q.  Do I really have to list out all of these new “infection prevention measures” in my IIPP?

A.  In their updated guidance, Cal/OSHA requests that you, “Include the following infection prevention measures in a written IIPP when applicable to the workplace.”  Legally, it would be hard for OSHA to directly enforce a citation for failing to include all applicable prevention measures in your written IIPP.  That is because the minimum requirements to be included in a written IIPP are already contained under the IIPP regulation, 8 CCR § 3203. 

However, OSHA can still find you in violation for having an “ineffective IIPP,” should you not be adhering to their recommended infection prevention measures.  Therefore, it is recommended that you do include all applicable prevention measures in your written program, or at least the ones most pertinent to your business.

At a bare minimum, you should be implementing these precautions in the workplace (and have proof of doing so), even if you do not directly refer to them in your written IIPP.

Q.  What does an employer need to do to assess the COVID-19 hazard under its IIPP?

A.  An IIPP typically includes the inspection requirements such as periodic physical inspections of the workplace.  However, these common visual, periodic inspections of the workplace surely will not be seen as passing muster when “identifying and evaluating” the new risk of COVID-19 in the workplace.  So, proactively take steps to protect against the risk of COVID-19 in the workplace, including procedures such as (1) requiring employees to report to their supervisors when sick and to stay home, especially when symptoms such as persistent cough, shortness of breath, and fever are present; (2) requiring employees who travel to COVID-19 hotspots or were exposed to someone with COVID-19 to immediately report their exposure and self-quarantine in accordance with CDC recommendations, and (3) encourage employees to work remotely, when possible.  Additionally, by establishing strict social distancing and hygiene protocols at work, such as  the use of hand sanitizers, tissues, lined-waste disposal, readily available soap and washing facilities, cleaning of commonly used areas and equipment, and PPE if necessary (especially for those at a higher risk of serious illness or death due to age or underlying medical conditions), also helps establish that the company is actively engaged in identifying and evaluating, and protecting against the risk of COVID-19 in the workplace. For more information about assessing COVID-19 as a hazard, click here.

Considerations Before Re-Opening

Q.  Do state and local orders allow my business to re-open?

A.  Yes.  Be sure to review all applicable state and local orders governing business closures to ensure that you are allowed to re-open and/or bring back employees. For more information about government limitations on gatherings and businesses, click here

Q.  Is it necessary to bring all employees back to the physical workplace?

A.  No.  In fact, you may not be able to bring all employees back if you are creating more social distancing in the workplace.  Given the ongoing and unknown nature of the virus, consider allowing employees whose jobs permit them to work remotely to continue to work remotely.  Moreover, some employees who are at high-risk from COVID-19 may be entitled to work from home as a reasonable accommodation under federal and state disability law.

Q.  What steps need to be taken to make the workplace safe for employees?

A.  Update your IIPP.  Create a COVID-19 Response Plan.  Train all employees in conjunction with your plans. Stay up-to-date on the CDC’s Safety Guidelines for Businesses and Cal/OSHA Workplace Safety Guidance.

Q. Where can I obtain training materials on COVID-19 to implement as part of my COVID-19 response plan?

A.  The National Institute of Environmental Health Sciences has several free training documents for download. You can find the materials at https://tools.niehs.nih.gov/wetp/covid19worker/.

Q.  How do I select which employees to bring back to work?

A.  Carefully.  The selection of employees to return to the workplace creates the potential for discrimination claims.  For example, if female workers as a group are brought back to work at lower rates than male employees, that may raise potential disparate impact claims.  For that reason, it is recommended that employers conduct a disparate impact analysis similar to the type of analysis typically completed in conjunction with a reduction in force.  Note that in the COVID-19 crisis, there may be legitimate concerns about bringing employees in vulnerable populations (such as workers who are older or have certain medical conditions) back to work, and some local orders expressly require older workers to be excluded from the worksite.  However, employers should be very careful of running afoul of federal and state anti-discrimination statutes. Indeed, the EEOC’s guidance states that employers cannot unilaterally postpone start dates or withdraw job offers from individuals who fall into high-risk categories for COVID-19, but may discuss taking those steps with those individuals.

Q.  Can I fire employees who tell me that they are unable to return to the workplace because their children’s schools or daycare centers are still closed due to the COVID-19 crisis?

A.  No.  Under the Families First Coronavirus Response Act, those employees may be entitled to take job-protected leave through December 30, 2020.  For more information about the Families First Coronavirus Act, click here.  Furthermore, employees on protected leave are generally entitled to reinstatement to the same or equivalent position.  For more information about reinstatement rights, click here.  Employees on a protected leave cannot be mandated to return to work, so employers should use alternate means to fulfill those employees’ duties (such as temporary workers) during employees’ protected leaves.

COVID-19 Response Planning

Q.  What is a COVID-19 Response Plan?

A.  A COVID-19 Response Plan allows an employer to evaluate and map out the return of employees to the workplace including developing sound plans, policies and procedures aimed at minimizing the risks of exposure to COVID-19 in the workplace, and responding to its presence in the workplace.  For more information about COVID-19 Response Plans, click here.

Q.  How can I facilitate social distancing in the workplace?

A.  There are many available options such as:

  • Reconfigure workspaces to maintain at least six-foot distance
  • Identify workstation paths (e.g., one-way aisles and floor markers to facilitate social distancing)
  • Redesign of production lines (e.g. to increase space between employees)
  • Repurposing conference rooms, lunchrooms, and other communal spaces to allow for more distance
  • Limiting in-person meetings
  • Reconfigure work schedules and/or shifts to limit the number of employees physically present in a specific office, facility, plant or other work location at any one time
  • Stagger meal periods and rest breaks to the extent consistent with applicable law to decrease the numbers of people who are in common areas at any given time
  • Evaluate need to retain outside safety consultant

Q.  What type of policies and procedures should an employer consider to mitigate against COVID-19 risks?

A.  There are many considerations that you should tailor to your business’ needs, such as:

  • Identifying a workplace coordinator to be responsible for COVID-19 issues
  • Create flexible policies for leave, telework and employee compensation that allow sick employees to stay home and away from co-workers
  • Ensure the availability of secure hardware and technology to allow the core functions of your business to operate in remote locations
  • Plan for continuing business operations if there are disruptions to vendor relationships
  • Create an emergency decision making function to shortcut the time to make critical decisions in an urgent environment
  • Create a chain of communications and processes for tracking and communicating changes within your organization and with critical outside business relationships to facilitate rapid response to COVID-19 issues
  • Do not allow employees to report to work if they are sick or experiencing COVID-19 symptoms
  • In advance of returning to work, ascertain whether any of your employees have experienced COVID-19 symptoms or traveled to COVID-19 hotspots within the last 14 days and determine standards for inviting them to return to work
  • Use flexible worksites and flexible work hours to improve social distancing
  • Stagger meal periods and rest breaks to the extent consistent with applicable law
  • Implement and enforce daily work station and workplace cleansing policies in accordance with CDC guidelines
  • Eliminate shared tools or develop a protocol for shared tools and other items (clean/sanitize before and after each use)
  • Promote frequent and thorough hand washing, and the use of hand sanitizer
  • Encourage respiratory etiquette, including coughing into one’s elbow, and using and disposing of tissues made available in the workplace
  • Determine the need for temperature taking and evaluating other COVID-19 symptoms prior to the beginning of workshifts
  • Workers should not use other employees’ work stations, phones or equipment.

Q.  What should I do about vendors, customers, and clients?

A.  You should evaluate all of your contacts and create policies to address situations where COVID-19 could impact your business, including:

  • Visitor area cleansing in accordance with CDC guidelines;
  • Availability of hand sanitizer, tissues and trash receptacles lined with disposable bags in visitor/client areas;
  • Plexiglass barriers;
  • Advance communication with vendors to understand whether their COVID-19 policies and practices measure up to yours, and action plan if they do not.

Q.  What kinds of plans should I consider relating to employees who experience COVID-19 symptoms in the workplace?

A.  Consider the following:

  • Employees exhibiting COVID-19 symptoms in the workplace should be sent home with instructions not to return until sometime after they are symptom-free. With or without a COVID-19 diagnosis, an employer may properly request medical confirmation that an employee is cleared to return to work without restriction before permitting an employee to return to work after having been out for COVID-19 related illness or symptoms;
  • Upon discovery of a symptomatic employee, that person’s movement should be limited, and the employee should be instructed to leave the workplace in a manner that minimizes contact with the workplace and individuals therein;
  • Areas used by the person who was sick should be vacated and closed;
  • Open outside doors and windows to increase air circulation in the area for 24 hours before cleaning or disinfecting.  If 24 hours is not feasible, then wait as long as possible;
  • While the CDC recommends techniques and materials for cleaning and disinfecting areas used by the sick person, such as offices, bathrooms, common areas, shared electronic equipment like tablets, touch screens, keyboards, remote controls, and ATM machines, it is recommended to engage a commercial, licensed, insured cleaning service to undertake that effort;
  • The CDC indicates that if it is more than 7 days since the sick person visited or used the facility, additional cleaning and disinfection is not necessary;
  • Continue routine cleaning and disinfection.

Q.  What plans should an employer make for the possibility that one of its employees tests positive for COVID-19?

A.  An employer should consider implementing the following plans:

  • Determine the last time the employee entered your workplace, and ascertain the workplace areas in which the employee worked during the prior 14 days;
  • Ask the COVID-19 Positive employee to identify any other employees with whom s/he had contact during the prior 14 days; 
  • Alert all employees that are identified that they may have been exposed to a co-worker diagnosed with COVID-19 and direct them to keep an eye out for symptoms.  DO NOT reveal the identity of the co-worker;
  • If the COVID-19 diagnosed employee worked in close personal contact with specific other employees, consider permitting such employees to resume remote work for 14 days to eliminate the possibility of infection;
  • Employees who are diagnosed with COVID-19 should not return to work until the CDC criteria to discontinue home isolation are met, medical confirmation that the employee may return to work, and in consultation with healthcare providers and, potentially, state and local health departments. 

For more information about COVID-19 Response Plans, click here.

CCPA Considerations

Q.  Why does an employer need to be concerned about the CCPA when employees return to the workplace?

A.  Employers who are obtaining additional information about their employees’ health, temperature and COVID-19 testing are likely accumulating personal information for which they may be required to give notice to employees and applicants.   For more information about CCPA requirements, click here

Q.  Is there an issue with timing?

A.  Yes, the California Attorney General will begin CCPA enforcement efforts on July 1, 2020.

Q.  Which Employers are Subject to the CCPA?

A.   The threshold test to determine whether an employer is likely required to comply with the CCPA occurs when any of the following three factors occur:

(1) annual sales of $25M or more;

(2) buy, sell, or share for “commercial purposes” 50,000 or more personal records; or

(3) derive 50% or more of its annual revenue from selling “personal information.”

Q.  What is personal information?

A.  “Personal information” identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household,” including 11 categories of consumer information such as name, address, personal identifier, IP address, email address, account name, Social Security number, driver’s license number, passport number, biometric information, characteristics of protected classifications, internet browsing history, geolocation data, education information and more.  The information may be in document or electronic format.

Even though the CCPA was originally written with an intent to protect consumers from having their personal information exploited against their wishes, modifications to the statute continue to take place, several of which impact employers in their role as an employer.  For the latest information about the CCPA and modifications since its inception, see the attached link to the California Attorney General’s CCPA webpage:  https://oag.ca.gov/privacy/ccpa.

Q.  What should a covered employer do to comply with CCPA?

A.  Employers must give an appropriate notice to applicants and employees about the categories of employee personal information that the employer maintains and how that information is used. 

Q.  What goes into a notice?

A.  The notice to applicants and employees should be:

  • drafted in plain, straightforward language;
  • easily readable, including on small screen (phones)
  • in the language used in the ordinary course of business to communicate with the relevant population;
  • able to identify the type of personal information that the employer collects;
  • descriptive of the purposes for which the business will use personal information;
  • accessible to the disabled or provide information on how a California resident or employee with a disability may access the notice in an alternative format.

Employers should note that HIPAA protected information such as that which is accumulated for health insurance purposes is expressly excluded from the CCPA and employers are not required to provide notice concerning the collection of HIPAA-covered health benefits.

For more information about the CCPA’s Notice requirements, click here.

Q.  What else is required of employers under the CCPA?

A.  Employers must have “reasonable security measures” to prevent data breaches that would lead to unauthorized access to employee personal information such as social security numbers, medical leave requests, warnings/disciplinary actions, performance evaluations, drug tests etc.  Unfortunately, neither the CCPA nor the California Civil Code defines what “reasonable security measures” entails.  The California Attorney General endorsed the Center for Internet Security’s 20 CIS Controls as a baseline for reasonable security, including:

  • implementing host-based firewalls, spam filters or port-filtering to prevent unauthorized access;
  • data protection/system backups;
  • removing sensitive data or systems from the network and limiting access based on the need to know;
  • training employees to identify, report and not respond to phishing attempts;
  • maintaining an active inventory of hardware devices and ensuring only authorized devices are connected to the network;
  • ensuring software is up to date from official sources;
  • changing default passwords especially on newly issued hardware;
  • installing anti-virus and anti-malware software on all devices;
  • training employees on how to identify and properly store, transfer, archive, and destroy sensitive information.

For more information about the CCPA’s Notice requirements, click here.

THE CARES ACT

General Information

Q.  What is the CARES Act?

A.  On March 27, President Trump signed the $2 trillion Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”).  The CARES Act provides the third wave of federal emergency relief to those suffering the economic fallout of COVID-19.  The Act provides subsidies and expanded unemployment insurance benefits for individual workers, but also provides various forms of financial assistance and tax benefits for businesses impacted by the pandemic.  The Small Business Administration (SBA) and the Department of Treasury have issued guidance to assist  implementation of and access to the Act’s provisions.

Q.  What relief does the CARES Act provide to small businesses?

A.  The CARES Act provides funds to businesses in the form of emergency grants, forgivable loans and relief from existing SBA loans to companies with 500 or fewer employees and certain other employers under SBA’s size standards as follows:

  • $10 billion to grants to cover immediate operating costs.  Each grant may be in an amount up to $10,000.   
  • $350 billion for Paycheck Protection Program (“PPP”) loans up to $10 million dollars.  Any portion of that loan that is used for payroll, to keep workers employed or to pay for rent, mortgage interest and existing debt is eligible for forgiveness, provided employers maintain employee headcount through the end of June 2020. 
  • $17 billion to cover six months of payments for small businesses that already have SBA Loans.

Q.  What does the CARES Act provide in terms of grants to small businesses?

A.  Those who apply during the covered period for a Small Business Administration loan through the Small Business Act’s Disaster Loan Program because of COVID-19, may request up to a $10,000 advance, which does not have to be repaid even if the loan application is later denied.  Advances are to be awarded within three days of making an application. 

The CARES Act expands the Small Business Act’s Disaster Loan Program during the period of January 31, 2020 through December 31, 2020 to include businesses, cooperatives and employee stock ownership plans with 500 or fewer employees; sole proprietorships, with or without employees, and independent contractors; and tribal small business concerns.  Advances may be used to provide sick leave to employees who are unable to work due to the direct effect of COVID-19, maintaining payroll during business disruptions during slowdowns, meeting increased supply chain results, making rent or mortgage payments, and repaying debts that cannot be paid due to lost revenue.  If a business that receives an advance is later approved for a loan under the Business Loan Program (below), any loan forgiveness will be reduced by the advance. 

For loan applicants, the CARES Act waives rules related to personal guarantees on advances and loans of $200,000 or less for all applicants, waives the one year in business prior to the disaster requirement, waives any requirement that the applicant be unable to find credit elsewhere, and allows lenders to approve applicants solely on credit scores or alternative methods to determine an applicant’s ability to repay.

Q.  What does the CARES Act provide in terms of loans to small businesses?

A.  The CARES Act allows the Small Business Administration to provide 100% federally backed loans (either directly or in cooperation with the private sector), to eligible businesses to help pay operational costs, including: payroll (wages, commissions, cash), paid leave, severance payments, group health benefits, insurance premiums, retirement benefits, state and local payroll taxes, rent, mortgage, mortgage interest, utilities and interest on other debt obligations.  The Act also permits loan proceeds to be used to cover up to $100,000 in one year for sole proprietors, independent contractors, and commission based compensation.

Q.  How do businesses apply?

A.  Currently, we recommend that you contact your bank, business advisor or accountants for up to date details on the latest guidance regarding these issues.  Our original guidance provides reference to many of the original issues that are beyond the scope of this website.

Q.  Am I a small business under the CARES Act?

A.  In general, a “small business” has fewer than 500 employees and includes sole proprietorships, independent contractors and self-employed persons, private non-profit organizations and 501(c)(19) veterans organizations affected by COVID-19.  Businesses in certain industries may have more than 500 employees if they meet the SBA’s size standards for their industry.  The PPP has specific rules regarding affiliation that also affect whether a business is eligible.

Q.  How do I access money made available by the CARES Act?

A.  Currently, we recommend that you contact your bank, business advisor or accountants for up to date details on the latest guidance regarding these issues.  Our original guidance provides reference to many of the original issues that are beyond the scope of this website.

Q.  What is the PPP?

A.  Currently, we recommend that you contact your bank, business advisor or accountants for up to date details on the latest guidance regarding these issues.  Our original guidance provides reference to many of the original issues that are beyond the scope of this website.

Q.  How much can I borrow?

A.  Currently, we recommend that you contact your bank, business advisor or accountants for up to date details on the latest guidance regarding these issues.  Our original guidance provides reference to many of the original issues that are beyond the scope of this website.

Q.  As a small business, what do I need to gather to apply for a PPP Loan?

A.  Currently, we recommend that you contact your bank, business advisor or accountants for up to date details on the latest guidance regarding these issues.  Our original guidance provides reference to many of the original issues that are beyond the scope of this website.

Q.  How do I apply for a PPP Loan?

A.  Currently, we recommend that you contact your bank, business advisor or accountants for up to date details on the latest guidance regarding these issues.  Our original guidance provides reference to many of the original issues that are beyond the scope of this website.

Q.  How does PPP Loan forgiveness work?

A.  Currently, we recommend that you contact your bank, business advisor or accountants for up to date details on the latest guidance regarding these issues.  Our original guidance provides reference to many of the original issues that are beyond the scope of this website.

Q.  What are the terms of the PPP Loan?

A.  Currently, we recommend that you contact your bank, business advisor or accountants for up to date details on the latest guidance regarding these issues.  Our original guidance provides reference to many of the original issues that are beyond the scope of this website.

Q.  What grants are available to small businesses?

A.  Small business owners are eligible to apply  for a SBA COVID-19 Economic Injury Disaster Loan (EIDL) (see below) and, in that application, may request up to a $10,000 advance, which does not have to be repaid even if the loan application is later denied.  Advances are to be awarded within three days of making an application and can be used to  provide paid sick leave to employees who are unable to work due to the direct effect of COVID-19, maintain payroll due to business disruption, meet increased supply chain costs, pay rent or mortgage payments, and repay debt that cannot be paid due to lost revenue.  If a business that receives a $10,000 advance and is later approved for a loan under the PPP program, PPP Loan forgiveness will be reduced by the advance. 

Q.  What is the COVID-19 EIDL?

A.  The CARES Act expands the existing SBA EIDL program during the period of January 31, 2020 through December 31, 2020 by adding a COVID-19 EIDL for businesses, cooperatives and employee stock ownership plans with 500 or fewer employees; sole proprietorships, with or without employees, and independent contractors; and tribal small business concerns.  The COVID-19 EIDL application is available at the SBA website and can be submitted directly to the SBA. 

EIDLs provide up to $2MM to help meet financial obligations and operating expenses that could have been met had the disaster not occurred.  The loan amount is based on actual economic injury and the business’s financial needs, subject to a 3.75% interest rate (2.75% interest for non-profits), for a term not to exceed 30 years.  For COVID-19 EIDL loan applicants, the CARES Act waives (a) rules related to personal guarantees on advances and loans of $200,000 or less for all applicants, (b) the one year in business prior to the disaster requirement, (c) any requirement that the applicant be unable to find credit elsewhere, and allows lenders to approve applicants based solely on credit scores or the lenders’ alternative methods.

Q.  Is there any other SBA loan?

A.  The SBA also has SBA Express Bridge Loans that allow small businesses with an existing SBA Express Lender relationship to receive $25,000 quickly while waiting for a COVID-19 EIDL loan.  This bridge loan is repaid in full or in part from  the proceeds from the COVID-19 EIDL loan.

Q.  Does the CARES Act provide relief to larger businesses or industries?

A.  Five hundred billion dollars is apportioned to non-forgivable loans for other eligible businesses, who must commit to maintaining their employment levels at 90% as of March 24, 2020 through September 20, 2020.   Approximately $39 billion of this apportionment is designated to air carriers and U.S. businesses essential to national security that did not, yet, receive economic relief from other loans or loan guarantees.  The remaining $454 billion is designated for the Federal Reserve to support lending to other eligible businesses. 

The Act requires the Treasury Secretary to publish procedures and minimum requirements for loans, loan guarantees and other investments within 10 days of the CARES Act’s enactment.  Within these provisions, is the authority for a mid-size direct lending program to aid small to mid-size businesses and non-profits with 500-10,000 employees.  Only U.S. domiciled businesses, whose employees are predominantly located in the U.S. and who demonstrate that alternative financing is not reasonably available, are eligible for a loan.  These small to mid-size business loans will originate with private lenders, are subject to a 2% interest rate cap, and provide a minimum six month deferral on principal and interest payments.  The eligible borrower must self-certify that the loan is necessary to support the borrower’s ongoing business operations, and commit to  not outsourcing or offshoring jobs for two years after repayment of the loan.  Employers must confirm that they intend to restore 90% of its workplace from February 1, 2020 and employee compensation and benefits within four months of the termination of the COVID-19 public health emergency.  Also, additional restrictions prohibit company stock buy-back, dividends, capital distributions, or workforce reduction of more than 10%. On March 30, 2020, the Treasury published initial guidance for the airline industry and defense industry on how to obtain benefits under the Act.  That guidance is here.  The Treasury Department has not yet issued guidance for mid-size employers. 

Q.  Are there tax benefits to employers under the CARES Act?

A.  Yes.  The Cares Act creates the Employee Retention Tax Credit for all employers whose businesses have fully or partially suspended operation during any calendar quarter in 2020 due to orders from a governmental authority limiting commerce, travel or group meetings for commercial, social, religious or other purposes due to COVID-19; or experience a significant decline in gross receipts during the calendar quarter.  A significant decline in gross receipts occurs in the first quarter in which a business’s gross receipts are less than 50% of its gross receipts for the same quarter in 2019.  State and local governments, and small businesses who have an SBA small business loan do not qualify for this tax credit.

Q.  How is the Employee Retention Tax Credit calculated?

A.  The Employee Retention Tax Credit is 50% of qualified wages paid up to $10,000 per employee for of 2020.  Qualified wages are determined based on the number of employees.  If a business had an average of 100 or fewer employees in 2019, the tax credit is based on all wages paid to employees during any period of economic hardship whether they actually worked or not.   If a business had more than 100 employees on average in 2019, then the tax credit is calculated based only on qualified wages paid to employees who did not work during the calendar quarter.  For these employers, qualified wages may not exceed what the employee would have been paid for working an equivalent duration during the 30 days immediately preceding the period of economic hardship.  Qualified wages includes the employer paid portion of company-provided health care.

Q.  How do I receive the Employee Retention Tax Credit?

A.  Employers can immediately reduce deposits to the IRS by the tax credit for qualified wages paid during the same quarter in advance of the deposit deadline.  And, an employer can apply for an advance refund of federal employment tax deposits for the remaining balance of the Employee Retention Credit for which it did not owe federal employment tax deposits.  Any overpayments of employer side employment taxes will be refunded. 

Q.  Does the CARES Act expand unemployment insurance (UI) benefits in a way that could incentivize employees to not work?

A.  Yes, potentially.  The CARES Act provides for expanded UI benefits by supplementing state UI benefits at the rate of an additional $600 per week for each employee receiving UI benefits.  This supplement is provided until July 31, 2020.  The purpose of this benefit is to allow workers to temporarily collect 100% of their “normal” wages (instead of a reduced percentage of their wages) through UI during the COVID-19 emergency.  However, the $600 supplement is fixed and may allow some workers (such as those making minimum wage or close to it) to earn more in UI than while reporting to work.  Congress determined that it was overly complex for states to provide a supplement of “up to” $600 per week and to cap benefits so that they do not exceed 100% of the worker’s normal wages.  The extent to which workers may get a windfall from this depends on which state employees are located as states’ UI benefits vary.  In some circumstances, therefor, there may be a disincentive to return to work.  Additionally, the Act allows workers to "self-certify" that they are unable to work and/or "had to quit" their jobs for various COVID-19 related reasons, so employers will be precluded from challenging UI requests.

The Act also extends the amount of time workers are able collect these unemployment insurance benefits to 39 weeks for the year 2020 only.  The $600 weekly supplement terminates on July 31, 2020.

To combat fraud, the CARES Act provides that any fraudulent intent or misrepresentations to obtain payments to which an individual is not entitled will result in ineligibility for any other UI benefits under the new law as well as criminal prosecution.  Overpayments also may be clawed back by the state agencies. 

Federal Guidance Regarding Eligibility For Unemployment Insurance

Q.  Does the CARES Act provide employees with unemployment insurance benefits?

A.  The CARES Act’s provision for a $600 weekly payment to any person that receives unemployment insurance compensation from her/his state government expired on July 31, 2020.  On August 8, 2020, President Trump issued an executive order creating an unemployment supplement of $400/week.  While the CARES Act supplement was federally funding, the executive order requires participating states to contribute 25% of the $400 before providing the supplement. 

Q.  Q.  Are gig workers eligible for unemployment benefits because of reduced demand for their services, even when they are not barred from providing their services due to stay at home orders?

A.  Yes.

Q.  Are workers eligible for unemployment benefits if they have symptoms of COVID-19 and seek a diagnosis?

A.  Yes.   A positive COVID-19 test is not required.

Q.  Are workers eligible for unemployment benefits if they are diagnosed with COVID-19 and forced to take unpaid time off work?

 Yes.

Q.   Are workers eligible for unemployment benefits if their child care facility is closed after school was scheduled to adjourn for the year?

Yes.

Q.  Are workers eligible for unemployment benefits if they are subject to stay-at-home or shelter-in-place orders that prevent them from working?

Yes. 

Q.  Are workers eligible for unemployment benefits if they are advised to quarantine by a health care provider?

A. Yes. 

Q.  Do workers remain eligible for unemployment benefits if their reason for eligibility changes? 

A.  Yes, and they do not need to file a separate application.

FAMILIES FIRST CORONAVIRUS ACT

General Information

Q: What is the new Federal paid leave law related to COVID-19 and employment?

A.  On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) was enacted.  The FFCRA requires private sector employers with less than 500 employees, and most public sector employers, to provide up to 10 days of paid sick leave to their employees for Coronavirus-related absences, and requires employers with less than 500 employees to provide up to 12 weeks of FMLA leave (10 of which are paid) to employees who cannot work due a Coronavirus-related closure of their childrens' school/child care.  The law provides dollar for dollar payroll tax credits for employers to cover the paid leave.  Department of Labor (DOL) guidance on the FFCRA is available here.  The DOL's regulations governing the FFCRA are here.

Q:  Which employers does FFCRA apply to?

A.  Private sector employers with fewer than 500 employees nationally, and most public sector employers.  The employees do not all need to be at one location.  The count includes full-time and part-time employees in any state, the District of Columbia or any U.S. Territory or possession, employees on leave, temporary employees that are jointly employed, and day laborers.  The count does not include independent contractors.  Where corporations have affiliated entities or divisions, they typically are still separate employers unless they are considered an “integrated employer” under the FMLA or “joint employers” under the FLSA.

There are some limited exemptions for small employers in specified circumstances, as well as exemptions for health care providers and emergency responders.

Q.  How and when does an employer determine if it has fewer than 500 employees?

A.  The determination is made at the time an employee seeks to take paid leave under the FFCRA.  Thus, it is possible that an employer will be covered and obligated to provide paid FFCRA leave at certain times, and not covered at other times (i.e. if the employer's headcount teeters around 500 and is sometimes over and sometimes under).

Q:  Are small employers covered by the FFCRA?

A.  Yes, but employers with less 50 employees may claim a narrow exemption from the requirement to provide paid sick leave to an employee who is unable to work due to the closure of a child's school/child care, and from the requirement to provide 12 weeks of FMLA leave to an employee for this same reason.  Small employers are still required to provide paid sick leave for other qualifying reasons (see Q&A below).    

A small business may claim the exemption from providing school-closure related paid leave if an authorized officer of the business has determined that:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or  
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity. 

A small employer claiming the limited exemption need not submit documentation to the DOL, but should retain it.  The DOL's guidance on this issue is here at Questions 4, 58-59. 

Q.  How much paid sick leave is a covered employer required to provide under the FFCRA?

A.  The FFCRA requires covered employers to provide up to 10 days (80 hours) of paid sick leave to a full-time employee.  A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you 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.  Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.

If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring.  And 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.

Q:  For what purposes may paid sick leave be taken under the FFCRA?

A.  The FFCRA provides paid sick leave for employees to use for any of the following reasons: (1) the employee is subject to a federal, state or local quarantine or isolation order related to Coronavirus; (2) the employee is advised by a health care provider to self-quarantine due to Coronavirus concerns; (3) the employee is experiencing symptoms of Coronavirus and seeking a medical diagnosis; (4) the employee is caring for an individual who is under a quarantine or isolation order or has been advised to self-quarantine; (5) the employee is caring for a child whose school or child care has closed due to Coronavirus; or (6) the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.  The DOL's FAQ provides further guidance and interpretations regarding these reasons here.  The DOL's regulations, which also define and clarify these reasons, are here.

There has been much confusion surrounding the scope of Reason (1) and the extent to which a state or local shelter in place order alone qualifies as a reason to use paid sick leave.  The DOL's regulations and guidance provide some clarification on this issue, but more clarification is still needed.  The regulations (Section 826.20) provide that an employee subject to a quarantine or isolation order, including a state or local shelter at home order, may take paid sick leave only if, but for being subject to the order, he or she would be able to perform work that is otherwise allowed or permitted by his or her employer, either at the employee's normal workplace or by telework.  An employee subject to such an order may not take paid sick leave where the employer does not have work for the employee as a result of the order or other circumstances.

This would appear to suggest that an essential worker (exempt from the shelter at home order) cannot use the shelter at home order as a reason to take paid sick leave.  However, if the employee is 65+ (in some locations, 60+) and/or is high risk due to certain medical conditions and cannot report to his/her essential services work (and/or telework) because of this, the shelter at home order may furnish a sufficient basis for that employee to use paid sick leave under the FFCRA's Reason (1).  This remains unclear, however.  Similarly, if an employee has symptoms of illness that may or may not be consistent with COVID-19, and the employee decides to "isolate" or self-quarantine in accordance with guidance from the CDC and/or shelter at home order, but the employee does not seek a medical diagnosis, does the employee qualify for paid sick leave under FFCRA Reason (1)?  This too remains unclear.  The DOL's FAQ guidance, particularly Questions 60-62, seems to suggest that an employee would not be eligible for paid sick leave in either of these circumstance.  The DOL states that an employee who self-quarantines due to symptoms or vulnerability is not eligible for paid sick leave unless a health care provider has advised the employee to stay home or self-quarantine and/or the employee is seeking a medical diagnosis.  If the DOL's FAQ guidance is correct, however, it begs the question how a shelter at home order would ever qualify any employee for paid sick leave under Reason (1).  

It also remains unclear when a shelter at home order qualifies an employee to take paid sick leave for FFCRA Reason (4) (the employee needs to care for someone who is subject to an isolation or quarantine order or has been advised to self-quarantine).  If the employee lives with or provides some care to someone who is 65+ or otherwise high risk, does the fact that the cared-for individual is recommended to isolate (by a shelter at home order/CDC guidance) suffice?  Is an employee's fear of risk of infecting the person enough?  What does it mean to "care for" such an individual?  These questions are not clearly answered.  The DOL's FAQ, Question 62, states only that an employee may take paid sick leave to care for an individual who, as a result of being subject to a quarantine or isolation order is unable to care for him or herself and depends on the employee for care, and providing that care prevents the employee from working (or teleworking).  Furthermore, an employee may only take paid sick leave to care for an individual who genuinely needs the employee's care.  Such an individual includes an immediate family member or someone who regularly resides in the employee's home.  It may also include a relationship wherein there is an expectation that the employee would care for the person in a quarantine or self-quarantine situation, and the cared-for individual depends on the employee for care during the quarantine or self-quarantine.

Q:  How does an employee establish that their child’s summer daycare plan fell through due to COVID-19?

A:  An employee may establish eligibility for “place of care closure leave” through many means, including proof of enrollment in a summer camp or day care, along with proof of cancellation, but this level of proof is not absolutely necessary.  Given that COVID-related closures started in March, enrollment for various camps and related activities may not have even been completed prior to summer starting, so an employee legitimately may not have proof of enrollment. In such circumstances, the DOL suggests that it may be enough for an employee to indicate intention to enroll a child in summer care, which an employee may (but is not required to) substantiate with proof of enrollment in the same programs in prior summers.

Q:  Now that schools are opening, is there any new guidance as to when FFCRA paid leave may be applicable?

A:  Yes, on August 27, 2020, the DOL published new FAQs to clarify how the FFCRA’s leave provisions apply to various types of school closures.  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#98)

Q:  If an employee’s child’s school is operating on an alternate day (or other hybrid-attendance) basis where the school is open each day, but students alternate between days attending school in person and days participating in remote learning, may the employee paid leave under the FFCRA in these circumstances? 

A:  The DOL says, yes, those employees are eligible to take paid leave under the FFCRA on the days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as the employee actually needs the leave to care for the child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” on days that he or she cannot attend in person. 

Q:  If an employee’s child’s school is providing a choice between in person school or a remote learning program and the employee elected remote learning because of fear that the child might contract COVID-19 and bring it home to the family, may the employee take paid leave under the FFCRA in these circumstances? 

A:  The DOL says, no, such employees are not eligible to take paid leave under the FFCRA because the child’s school is not “closed” due to COVID–19 related reasons; it is open. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. However, if, because of COVID-19, the child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, the employee may be eligible to take paid leave to care for their child.

Q.  If an employee’s child’s school is beginning the school year under a remote learning program out of concern for COVID-19, but will make a decision about reopening for in-person attendance later in the school year, may the employee take paid leave under the FFCRA?

A.  The DOL says, yes, such employees are eligible to take paid leave under the FFCRA while the school remains closed. If the school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations.

Q.  What documentation may I require to substantiate an employee's request for paid sick leave?

A.  This has been an area of unclear guidance from the DOL and IRS.  Currently, the DOL guidance (see Question 16) to employees requesting FFCRA paid leave is: "You must provide your employer either orally or in writing the following information: (1) Your name; (2) The date(s) for which you request leave; (3) The reason for leave; and (4) A statement that you are unable to work because of the above reason.

If you request leave because you are subject to a quarantine or isolation order or to care for an individual subject to such an order, you should additionally provide the name of the government entity that issued the order. If you request leave to self-quarantine based on the advice of a health care provider or to care for an individual who is self-quarantining based on such advice, you should additionally provide the name of the health care provider who gave advice.

If you request leave to care for your child whose school or place of care is closed, or child care provider is unavailable, you must also provide (1) The name of your child; (2) the name of the school, place of care, or child care provider that has closed or become unavailable; and (3) a statement that no other suitable person is available to care for your child.  On this issue, the IRS also requires a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.  See the IRS guidance here.

Q:  How much do I have to pay an employee who uses paid sick leave provided under the FFCRA?

A.  If an employee uses paid sick leave for reasons (1) – (3) above, the employee must be paid the greater of the employee’s regular rate of pay or the applicable state/local minimum wage, subject to a cap of $511 per day and $5110 in the aggregate.  If an employee uses paid sick leave for reasons (4) – (6) above, the employee must be paid the greater of 2/3 the employee’s regular rate of pay or the applicable state/local minimum wage, subject to a cap of $200 per day and $2000 in the aggregate.  Please note that the term "regular rate of pay" does not necessarily mean the employee's base hourly rate of pay.  If a non-exempt employee is involved, and earns additional forms of non-discretionary compensation on top of their base hourly rate, that compensation may need to be included in determining the employee's regular rate of pay for purposes of payment of paid sick leave under the FFCRA.  In other words, the term "regular rate of pay" has a similar meaning as it does for overtime purposes under the FLSA.  Please see the DOL’s FAQ here, particularly Questions 5-8, which includes additional information on calculating pay for part-time employees. 

Q:  Is the 80 hours of paid sick leave required by the FFCRA in addition to paid sick leave already provided by the employer?

A.  Yes.  This is a new leave requirement effective April 1, 2020.

Q.  What if I immediately began providing paid sick leave in order to comply with the FFCRA sometime between March 18, 2020 (the date the FFCRA was signed into law) and  March 31, 2020 (prior to the effective date of the FFCRA on April 1, 2020)?

A.  Covered employers need to provide at least 80 hours of paid sick leave from April 1, 2020 forward, even if they provided paid sick leave prior to April 1 in reliance on the original DOL and IRS press releases, the current DOL regulations and guidance indicate that an employer will not receive tax credits for paid sick leave hours provided prior to April 1, 2020, even if the paid sick leave was provided in order to immediately begin complying with the FFCRA.  Unfortunately, this result appears to be quite unfair because on March 20, 2020, the DOL and IRS issued a press release stating that employers could immediately begin taking actions in compliance with the Act and be eligible for payroll tax credits.  No guidance informed employers of the technical "effective date" of the FFCRA until more than a week after it was signed into law.  

Q:  Can I require employees to exhaust their previously accrued paid sick, vacation, or PTO prior to using any of the new paid sick leave provided for by the FFCRA?

A.  No.  The FFCRA states that employers may not require employees to exhaust pre-existing paid sick leave or other paid leave prior to being eligible for the paid sick leave required by the FFCRA.

Q:  Does the FFCRA apply to an employee that I hired yesterday?

A.  Yes, the FFCRA paid sick leave provisions apply to a brand new employee, but the FFCRA’s  paid Family Medical Leave provisions do not.  An employee has to be employed for 30 days in order to be eligible for the expanded FMLA leave under the Act, but the paid sick leave provision applies to all employees, regardless of length of employment.

Q:  What does the FFCRA require employers to provide in terms of FMLA leave?

A.  The FFCRA expands the FMLA by providing that employees may take up to twelve weeks of FMLA leave to care for a child whose school/child care has been closed due to the pandemic.  Employees do not need to meet normally applicable eligibility requirements for FMLA leave (12 months of service and at least 1250 hours worked in the year preceding the leave).  Instead, an employee need only be employed for 30 days in order to be eligible for the expanded FMLA leave. [Note, also, that this means the employee has been on the payroll for 30 calendar days, not that an employee has actually worked 30 days.]  The expanded FMLA leave applies to most public sector employers and all private sector employers with fewer than 500 employees (though employers with less than 50 employees can seek an exemption and employers of healthcare providers/first responders can exempt these employees).  Furthermore, ten weeks of the expanded FMLA leave must be paid.  An employee may also use the paid sick leave provided by the FFCRA for the other two weeks.   

Q.  What if an employee has already used some of his/her 12-week FMLA leave for other normally-qualifying FMLA purposes?

A.   If an employee has already exhausted all of his or her 12 weeks of FMLA leave for other reasons during the 12-month period used by the employer, an employer does not need to provide another 12 weeks for a virus-related school closure.  If the employee has used some of the 12-week leave entitlement in the 12-month period used by the employer, the employee must be permitted to use the balance for a qualifying need to care for a child whose school/child care has closed due to COVID-19.  Along the same lines, if an employee uses some of his/her 12-week FMLA leave between April 1 to December 31 of this year for school closure purposes under the FFCRA, that amount will be deducted from the employee's FMLA leave and the employee will only have the balance of time remaining to use for other qualifying FMLA reasons in the same 12-month period.  The DOL's FAQ on this issue are here at Questions 44-45.

**California employers beware, however: the expanded FMLA leave does not run concurrently with CFRA leave and its use will not count toward an employee’s CFRA leave entitlement.  This is because leave for a COVID-19 related school closure is not a covered reason for leave under CFRA.  

Q:  Are my employees eligible for both FFCRA paid sick leave and paid FMLA leave, if they have to care for children due to school closures?

A.  Yes, for a total of twelve weeks paid leave.  The employee will receive two weeks of paid sick leave followed by ten weeks of paid family leave.  If the employee uses his/her paid sick leave for a different qualifying reason than a school closure (e.g. the employee is sick and seeking a medical diagnosis), then the employee will have exhausted his/her FFCRA paid sick leave.  If the employee subsequently needs time off to care for a child whose school has closed, the employee will still be eligible for 12 weeks of FMLA leave under the FFCRA, but the first two weeks of this leave would be unpaid (unless the employee has previously accrued paid time off and elects to use that paid time off for the first two weeks.

Q:  How much do I have to pay an employee who takes paid FMLA leave under the FFCRA due to a COVID-19 related school closure?

A.  An employee taking the expanded FMLA leave provided by the FFCRA to care for a child with a school closure must be paid 2/3 the regular rate or 2/3 of the applicable minimum wage, whichever is higher, up to a cap of $200 per day and $10,000 in the aggregate for 10 weeks.  If available, the employee may use paid sick leave under the FFCRA to cover the remaining two weeks of FMLA leave (and would be paid the same rate for those two weeks if the paid sick leave is provided under the FFCRA).

Q:  Does the FFCRA require employers to now provide paid leave even for non-COVID-19 use of FMLA leave?

A.  No, the only COVID-19 related paid FMLA leave is for employees that need to care for their child because of school/child care closures due to COVID-19.

Q:  Does the expanded FMLA school closure leave only apply to a need to care for a child who is under 18?

A.  No.  Leave may also be taken to care for an adult child with a physical or mental disability and whose regular care provider has closed/is not available for COVID-19 reasons.  The DOL's FAQ on this issue is here, at Question 66.

Q.  Can FMLA leave under the FFCRA be used on an intermittent basis by employees?

A.  Yes, but only with employer approval.  The DOL's guidance on this issue is here at Questions 20-22.

Q.  Can I require an employee to use previously accrued paid time off (sick leave, vacation) under company policies during their FMLA leave?

A.  The guidance on this issue is a mess, and the answer is not clear as a result.  The DOL's FAQ here (Question 31) suggests that the answer is yes, in limited circumstances.  However, the FFCRA regulations say the opposite (that an employer may not require an employee to use previously accrued leave) in some sections -- see, 826.60 and 826.70.  Other portions of the regulations seem to conflictingly suggest that an employer may indeed require an employee to use previously accrued leave during FMLA leave and that such leave will run concurrently with the paid leave provided by the employer under the FFCRA.  See 826.23 and 826.160.  At this time, it is not recommended to REQUIRE an employee to use previously accrued paid time off during FMLA leave provided under the FFCRA.  An employee may ELECT, with employer agreement, to use previously accrued paid time off in order to supplement the pay the employer is required to provide under the FFCRA, in order to bring the employee's pay to 100%.  However, the employer can only obtain a payroll tax credit for the capped amount ($200 per day, $2,000 total) provided under the FFCRA.   Additionally, only the amount of previously accrued paid time off needed to bring the employee up to 100% pay may be deducted from the employee’s paid leave bank.  

Q.  What documentation can I require to substantiate an employee's use of FMLA leave under the FFCRA?

A.  An employee requesting FMLA leave due to a school/child care closure must provide the employer the following information, either orally or in writing: (1) the employee's name; (2) the date(s) for which leave is requested; (3) the reason for leave; (4) a statement that the employee is unable to work because of the above reason; (5) the name of your child; (6) the name of the school, place of care, or child care provider that has closed or become unavailable; (7) a statement that no other suitable person is available to care for the child; and (8)  with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.  The DOL FAQ is here at Question 16, and the IRS guidance on this issue is here.

Q.  Does the FFCRA provide any monetary assistance or relief to employers who provide the paid leave benefits required by the Act?

A.  Yes, the FFCRA provides dollar for dollar payroll tax credits for employers for any FFCRA paid leave benefits and related healthcare continuation costs in compliance with the Act.  More information on the payroll tax credits and how to claim it is available from the IRS here and here

Q:  Does an employer have to continue health coverage for employees taking FFCRA paid sick leave or paid FMLA leave?

A.  Yes.  Employees are entitled to continued group health coverage during paid sick leave and/or expanded family leave on the same terms as if they continued to work. Employees must continue to make any normal contributions to the cost of health coverage.  If an employee does not return to work after exhausting all paid sick leave and/or FMLA leave provided by the FFCRA, the employer no longer has to continue the employee's group health benefits and the employee will need to elect COBRA continuation coverage in order to continue them.

Q:  Are employees who are on furlough due to lack of work as of the effective date of the FFCRA entitled to benefits under the FFCRA?

A.  No.  The DOL's guidance on this issue is here at Questions 23-28.  Employees who cannot work because their employer has closed the worksite, furloughed them, and/or reduced their hours are not eligible for paid leave under the FFCRA.  These employees may be eligible for unemployment insurance benefits, however.

Q:  If an employer closes on or after April 1, 2020 (the effective date of the FFCRA), before an employee goes out on leave, will the employee be eligible for paid sick leave and/or expanded FMLA leave?

A.  No.  If an employer closes after the FFCRA’s effective date (even if leave was requested prior to the closure), employees do not get paid sick leave or expanded FMLA leave whether the closure was for a lack of business or pursuant to a Federal, State or local directive.

Q:  If an employee is on paid sick leave or expanded family and medical leave when the employer closes, will the employee have continued eligibility for paid sick leave and/or expanded FMLA leave?

A.  The employer must pay only for paid sick leave or expanded FMLA leave used by the employee before the closure.  After the closure date, the employee may be eligible for unemployment insurance benefits.

Q:  If I reduce my employees’ scheduled work hours, are the employees eligible for paid sick leave or expanded FMLA leave for the reduction in hours?

A.  No.  If work hours are reduced due to a lack of work, employees may not use paid sick leave or expanded FMLA leave for the hours’ reduction.  

Q.  Do I have to reinstate an employee who uses paid sick leave or expanded FMLA leave under the FFCRA?

A.  Generally, yes.  An employee is generally entitled to be reinstated to the same (or nearly equivalent) position upon return from paid sick leave or expanded FMLA leave under the FFCRA.  However, an employee is not entitled to any greater rights than if actively reporting to work.  In other words, the employee is not immune from layoff decisions.  There are some exceptions to reinstatement rights for employees taking expanded FMLA leave under the FFCRA.  In some instances, employers may deny reinstatement to certain "key employees" as that term is defined in the FMLA.  Additionally, employers with fewer than 25 employees may deny reinstatement in limited circumstances.  For more information on this topic, see the DOL's FAQ #43 on this issue, here.

Q:  Do I have to give employees notice of their rights under the FFCRA?

A.  Yes.  The FFCRA requires covered employers to post a notice.  On March 25, the DOL published a model notice for employers to use.  The model notice is here.  The DOL also published very helpful FAQ for employers on their notice obligations, including where to post or otherwise communicate the notice, whether laid off employees are entitled to notice, and whether new hires are entitled to notice.  The DOL's FAQ are here.  The DOL published Spanish-language versions of Fact Sheets on the FFCRA on March 27, available at https://www.dol.gov/agencies/whd/pandemic.  The DOL has also now posted a Spanish version of the poster/model notice, available here.

Q.  Is there any government assistance to help employers with the financial cost of providing emergency paid sick leave and paid family leave to employees under the new federal law?

A.  Yes, the new federal law provides dollar for dollar payroll tax credits for covered employers who provide paid sick leave and/or expanded FMLA paid leave benefits, along with health benefit continuation costs, as required by the new law.  Information on how to take advantage of the payroll tax credits is available on the IRS website here

Q:  Will the Federal government come after me if I am not in compliance on day 1 of the FFCRA?

A.  Probably not.  As long as you are making a good faith effort at compliance and make any employees whole if you made an error, the DOL has announced a thirty-day non-enforcement period from March 18, 2020 to April 17, 2020.  If you find yourself in this situation, check with your counsel to ensure that you comply with the DOL’s good faith requirements.  

Q:  If I pay my employees more than they are entitled to receive for paid sick leave or expanded family and medical leave under the FFCRA, can I claim a tax credit for the entire amount paid?

A.  No.  You will not receive tax credit for amounts in excess of the FFCRA’s statutory caps. 

Q:  Will employers who are party to a multi-employer collective bargaining agreement satisfy their obligations for FFCRA paid sick leave or paid FMLA through contributions to a multi-employer fund, plan, or program?

A.  Yes.  Or, such employers may choose to satisfy FFCRA obligations by other means, provided they are consistent with the bargaining obligations and collective bargaining agreement.

Healthcare Industry-Specific Information

Q.  May employers (other than small employers with less than 50 employees) exclude some employees from FFCRA coverage?

A.  Yes, but the ability to exclude employees is very limited.  “Employers of Health Care Providers or Emergency Responders may elect to exclude such employees from eligibility for the leave provided under the Act.”  

Q.  Who is considered a "healthcare provider” who may be exempted from the FFCRA's paid leave provisions?

A.  The DOL's guidance provides that a "healthcare provider" is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. 

This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

Q.  How does the FFCRA define an "emergency responder” who may be exempted from the FFCRA's paid leave provisions?

A.  The DOL's guidance defines an "emergency responder" as an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

Q.  Which job classifications cannot be excluded by a healthcare employer from the FFCRA's paid leave provisions?

A.  Job classifications that do not meet the definition of "healthcare provider" or "emergency responder" may not be excluded from FFCRA coverage.

Q.  What about a small physician’s office, does the FFCRA apply?

A.  Generally, yes (with the exceptions noted above) but a small office may qualify to claim the small employer exemption from the FFCRA's school-closure related paid leave provisions.

Q.  Are healthcare employers of unionized employees safe to change compensation, schedules and/or terms and conditions of employment in response to COVID-19?

A.  Possibly.  A Collective Bargaining Agreement (CBA) may include a strong management rights clause, “force majeure”, emergency or disaster clause that allows for greater flexibility than “business as usual”.  Use your counsel to determine whether the COVID-19 pandemic meets any trigger conditions if you have such a clause.  Otherwise, the National Labor Relations Act (“NLRA”) requires employers to bargain in good faith over mandatory subjects of bargaining, including wages, hours, and the terms and conditions of employment.  Employers who make unilateral decisions regarding these terms may be subject to an unfair labor practice charge that may apply even during emergency situations such as the current COVID-19 pandemic. 

Q.  What are some of the mandatory subjects of bargaining that may arise during the COVID-19 pandemic?

A.  For healthcare employers, this would include changes to work schedules, screening employees for symptoms, requiring protective gear, and requiring vaccinations, among others.

Q.  What if my CBA does not contain a force majeure clause, do I have to strictly comply with its provisions?

A.  It depends.  The duty to bargain in good faith over the terms and conditions of employment may be suspended when a “compelling economic exigency” requires immediate, unilateral action.  The compelling economic exigency standard is high, but healthcare employers may be able to justify such action in a pandemic situation.  Nevertheless, healthcare employers who elect to proceed down this path should be mindful that there is no bright line rule defining a “compelling economic exigency.”   As such, making such unilateral decisions is not without risk and should only proceed after consulting with your legal team.

Q.  As a healthcare employer facing this COVID-19 pandemic, I need to make quick decisions, are there other avenues that I may pursue?

A.  Yes.  Communicate with your union stewards and agents about your upcoming perceived needs and plans and work to get their buy-in.  Unions may waive statutory rights.


GOVERNMENT LIMITATIONS ON GATHERINGS AND BUSINESSES

State of California

Q:  Does the State of California have a consolidated resource for employers trying to reopen?

A:  On July 24, 2020, California published the “COVID-19 Employer Playbook” to provide guidance to employers to plan and prepare for reopening and to support safety for workers and customers.  While this compilation of information may be helpful, it does not include county level health orders or substitute for compliance with Cal/OSHA requirements.  The Playbook can be found here.

Q:  What is the State of California’s most recent order?

A:  On July 13, 2020, Governor Newsom announced that all bars must close, and stopped all indoor operations for any restaurants, wineries, movie theaters, family entertainment centers, zoos, museums and cardrooms across the state.He also announced closing gyms, places of worship, malls, personal care services, barbershops, salons and non-critical offices in the 30 or so most populous counties in the state.

Q:  What are the face-covering requirements in California?

A:  Governor Newsom signed an Executive Order on June 18, 2020 broadly requiring people to wear a face covering when outside the home.  Here are the rules most applicable to employers:

Face masks are required while working when:

  • Interacting in-person with the public;
  • Working in any space visited by the public, regardless of whether anyone is present;
  • Working in any space where food is prepared or packaged for sale or distribution;
  • Working in or walking through common areas, such as hallways, stairwells, elevators, and parking facilities;
  • In any room or enclosed area where other people are present when unable to physically distance (i.e. six feet or separation or impervious barriers between employees required); and
  • Driving or operating any public transportation, taxi, or private car service when passengers are present.

Masks are required while outdoors when maintaining a physical distance of six feet from persons who are not members of the same household is not feasible, and inside of, or in line to enter, any indoor public space.

For all of our struggling restaurant clients and friends: as noted below, you do not need to close back down, and masks are not required for customers while dining in a restaurant if six feet of separation is maintained from other groups (or proper impervious barriers have been installed).  Customers must wear masks upon entering, and staff must wear masks at all times while working (but not gloves unless they are clearing the table or involved in cleaning/disinfecting).

The following individuals are exempt from wearing a face covering:

  • Children aged two and under;
  • Persons with a medical, mental health, or developmental disability that prevents wearing a face covering;
  • Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication;
  • Persons for whom wearing a face covering would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines;
  • Persons who are obtaining a service involving the nose or face for which temporary removal of the face covering is necessary to perform the service;
  • Persons who are seated at a restaurant or other establishment that offers food or beverage service, while they are eating or drinking, provided that they are able to maintain a distance of at least six feet away from persons who are not members of the same household or residence;
  • Persons who are engaged in outdoor work or recreation such as swimming, walking, hiking, bicycling, or running, when alone or with household members, and when they are able to maintain a distance of at least six feet from others; and 
  • Persons who are incarcerated. Prisons and jails, as part of their mitigation plans, will have specific guidance on the wearing of face coverings of masks for both inmates and staff.

The Governor’s Order essentially negates any existing county or local orders that said masks were not required, or that otherwise conflict with the state Order.

Employers – if you were not already doing so, you now need to provide masks or reimburse the cost if employees will have to provide them to wear them at work (which almost everyone will to some extent – at least while entering and walking through common areas and using the bathroom).  It is also a good idea to distribute the Guidance from the California Department of Public Health on how to properly wear face coverings, which can be found here.

Hopefully, this new Order will not impose too much of a burden on employers who likely just re-opened, as many have already taken steps to make sure employees are six feet apart (or erected barriers), which allows them to work without masks at their workstation (but they will have to wear them in the bathroom, breakroom or walking in common areas). 

You can find more information for the California Department of Public Health here.

Q:  Does Governor Newsom’s March 19, 2020 Executive Order require all people in California to stay home?

A.  No.  Governor Newsom’s two-page Executive Order, widely publicized as a “Shelter in Place” order, provides for exceptions “needed to maintain continuity of operations of the federal critical infrastructure sectors.”  Later, the night of March 20, 2020, the Governor issued clarification providing detail as to essential employment that is exempt.  Click HERE for more details.  Any Employer that believes it qualifies as providing services requisite to critical infrastructure sectors should consult with counsel as to the best way to proceed.  https://www.callaborlaw.com/entry/coronavirus-updates-shelter-in-place-updated-eeoc-guidance-and-more.  Essential businesses (which include, among many others, hospitals, many government facilities, gas stations, retail stores providing essential goods, security services, restaurants (for takeout only) are allowed to stay open.  To the extent possible, workers of essential businesses should telecommute.  Workers who must report to the worksite to perform their jobs must use safe social distancing. To be clear, non-essential businesses may continue to operate, so long as telecommuting can be employed and/or to carry out minimum basic operations.

County Orders

Q:  Recently, local governments have issued orders placing limitations on gatherings, promoting social distancing and encouraging remote work.  How do I know if it applies to my business?

A.  The breadth and scope of orders in any given locality will differ.  In California currently, the seven counties in the Bay Area have the most stringent regulations.  54 California counties have declared COVID-19 related health emergencies and at least eighteen counties have also issued orders, including what are referred to as “Shelter in Place” or extreme social distancing notices of various types to all residents.  These pages also contain links to the actual orders, however, you should carefully review the details of any order from any jurisdiction in which you have employees or do business with counsel.

For your convenience, you may click on the links below for the summaries of orders from the following counties and links to the actual orders:


REMOTE WORK ISSUES

Q. Do I still have to investigate employee complaints during the COVID-19 crisis?

A.  Yes.  As businesses re-open, employers should anticipate an increase in complaints about discrimination, harassment, and/or retaliation as a result of the havoc caused by the COVID-19 crisis.  Employers are still obligated to conduct prompt, thorough, and impartial investigations of employee complaints, notwithstanding the COVID-19 emergency.  Employers should exercise flexibility in how investigations are conducted under the circumstances, while balancing the obligation to promptly and thoroughly investigate complaints.  To that end, employee complaints should be conducted remotely, as in-person meetings are not presently possible or recommended due to COVID-19-related social distancing practices.  Video conferencing is preferable because it allows for face-to-face establishment of rapport with witnesses. If video conference is not feasible, witnesses may also be interviewed by telephone.

Q.  I know that many people are working from home, is there anything that I should do before I authorize work from home?

A.  Yes, you should work with your counsel to create a Remote Work Agreement that addresses any technology that you are providing, hours of work, overtime, rest periods, break periods, time tracking, professionalism and security.  This agreement may be for a limited period of time or revocable at your discretion.  Employers continue to have exposure for wage, hour and overtime issues for non-exempt employees and should ensure that Remote Work Agreements address work hours and timekeeping procedures and that timekeeping procedures are monitored.

Q.  Has the DOL issued any guidance to help track the hours of employees working from home?

A.  Yes, click here for the DOL’s field assistance bulletin.  DOL’s guidance reminds employers that they must pay for all time that an employee is “suffered or permitted to work,” for all hours the employee is scheduled and/or directed to work, and when an employee works unscheduled hours.  If an employee performs work outside of the employee’s scheduled hours, it still must be compensated.  Employers must use “reasonable diligence” to determine all hours being worked by their employees. 

Q.  So, what are some examples that I can use to track hours for non-exempt employees working from home?

A.  Employers may provide forms to be completed by employees to report any work outside of their scheduled working hours (e.g., responding to emails, texts, or calls), missed meal or rest periods, or to confirm that the employee worked the scheduled shift.  The DOL expects employers to use a reasonable diligence standard which is based on what an employer “should” know, not on what an employer “could” know.  “… reasonable diligence generally does not require the employer to undertake impractical efforts such as sorting through [computer access logs] to determine whether its employees worked hours beyond what they reported.”

Q.  Does the DOL guidance apply in California?

A.  Yes.  Employers must implement and communicate reasonable procedures for reporting ALL hours worked by remote employees, and should not discourage accurate and complete reporting or tell employees that work performed outside of scheduled working hours will not be compensated.  If employees are working too much overtime or hours off-the-clock, those employees should be disciplined, not denied pay. 

Q.  Do my remote working employees get rest periods and meal breaks?

A.  Yes, if they are non-exempt.

Q.  Do my non-exempt remote working employees get paid overtime, if they work overtime?

A.  Yes, if they are non-exempt.

Q.  What happens if my employees get injured, in their own home, while working?

A.  They should report it to you and you should commence your Workers’ Compensation protocol by providing them with the appropriate form and let your carrier know.  As you are moving to a remote work workforce, you should contact your workers’ compensation carrier and determine whether you need to advise them of this change.

Q.  May I allow my employees to use their own computers, pads, and other personal electronic devices?

A.  You may, but remember that in California, you are obligated to indemnify or reimburse them for the use of their personal devices and data if they need to use it for work purposes.  This may be a difficult figure to calculate but a Remote Work Agreement can be useful to demonstrate what the employee agreed to as a reasonable reimbursement.

Q.  How do I protect my trade secrets if my employees work from home due to a COVID-19 quarantine or other government order?

A.  With the increasing number of Health Department and other orders streamlining workplace work, many employers are required to implement remote work capabilities and to do so with little warning.  Keep in mind that your employees, ideally, should work with hardware that your IT team has approved and that will protect your information.  Be sure that your team has high-security internet connections to your servers or cloud servers.  And, in conjunction with assigning remote work to these employees, ensure that they renew their commitment, in writing, to protect your trade secret and confidential information, not to conduct business work on personal hardware and, also, not to conduct personal business from their work devices.

Q.  I need to hire new employees to work remotely, but my area has orders restricting movement, how do I comply with I-9 requirements?

A.  On March 20, 2020, DHS announced that employers temporarily will be permitted to comply with I-9 document inspection requirements for new hires using video, email, or fax review of their work authorization documents.  Employers still must complete the I-9 from and annotate it with “COVID-19.”  When normal operations resume, the employer must verify the original documents in person within 3 business days and annotate the form.

Q.  I’m an eVerify employer.  Eight days ago, the eVerify system returned a Tentative Non-Confirmation for a newly hired employee.  May I terminate the employee?

A.  No.  Due to the closure of the Social Security offices, eVerify is extending the interim or tentative status for all employees whose employment authorization status can’t be confirmed.


PAY AND LEAVE ISSUES

General Information

Q.  If I have an “essential business” and/or am in the “critical infrastructure sector” as defined by the Department of Homeland Security and/or state and local authorities as "exempt" from the shelter in place orders, are my employees still required to work?

A.  Yes, to the extent they are essential workers.  However, telecommuting arrangements should be employed to the extent practicable and social distancing methods should be utilized in the workplace.  Some cities and counties (e.g. Bay Area and Los Angeles) are requiring essential businesses to adopt specific, written social distancing protocols.  Los Angeles has an order requiring certain essential business employers to provide masks to employees and allow handwashing every 30 minutes.  Employers need to be familiar with local government orders in jurisdictions in which they have employees working.  Of course, if an employee qualifies for Coronavirus-related leave, the employee’s needs should be accommodated.

Q.  Do I have to pay employees who are absent from work due to COVID-19-related illness or quarantine?

A.  Non-exempt employees must be paid for all hours actually worked.  This can be challenging if employees are working from home.  Adhere to timekeeping requirements and meal and rest break requirements for these non-exempt employees by informing them to track and report all hours worked (including the times of meal breaks), to take all required meal and rest breaks, and not to work overtime.  Exempt employees must be paid their full salary for any week in which they perform work.  Checking and responding to work-related emails counts as performing work.  Of course, if you are an employer covered by the new FFCRA, you will need to provide paid sick leave and paid FMLA leave for covered absences in accordance with the new law.  All employees must also be allowed to use their accrued paid sick leave under California law for COVID-19 related absences.  Employers may not require employees to use their accrued paid sick leave provided under California law.  For details visit: https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm. Employers should also note that California cities, starting with Los Angeles, are starting to adopt emergency paid sick leave orders for employers with more than 500 employees.  Employers need to be monitoring these developments in jurisdictions in which they have employees.

Employers are also obligated to pay accrued, unused vacation or paid time off (PTO) to employees who are absent from work for reasons related to COVID-19 and who elect to use such leave, consistent with company policy and applicable collective bargaining agreements.  Employees may not be required to use accrued vacation, PTO, or sick leave PRIOR to utilizing the emergency paid sick leave benefit provided under the new federal law.

Employers should advise employees that they may also be eligible to receive certain state benefits to partially replace their wages resulting from lengthier absences related to COVID-19 illness or quarantine:

  • Short-term partial wage replacement is available if employees are ill due to having or being exposed to COVID-19 under the disability insurance program.  Governor Newsom’s March 12, 2020 Executive Order waives the one-week waiting period for state disability insurance becomes payable.  For details visit: https://edd.ca.gov/about_edd/coronavirus-2019.htm.
  • State unemployment insurance benefits are also available to eligible employees whose hours are reduced or eliminated due to COVID-19.  Governor Newsom issued an Executive Order waiving the one-week waiting period for unemployment insurance benefits.  For details visit: https://edd.ca.gov/about_edd/coronavirus-2019.htm.  And, the requirement that employees actively seek employment.
  • Be sure to communicate (in writing) to employees who are absent from work and using any of the above-referenced benefits that they should not be performing work during their absence.

Q.  Do I have to pay employees who are absent from work because their family members are ill with COVID-19?

A.  Employees must be allowed to use accrued paid sick leave under California law for the employee’s family members’ COVID-19-related illnesses.  Employees may not be required to use their accrued paid sick leave provided under California law.  For details visit: https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm.  Employers covered by the federal FFCRA will also be required to provide up to 10 days' paid sick leave to employees who cannot work because they need to care for a family member who is ill with COVID-19.  Employers cannot require employees to exhaust other forms of paid leave prior to utilizing the paid sick leave provided for by the FFCRA.

Employers are also obligated to pay accrued, unused vacation or paid time off (PTO) to employees who are absent from work for reasons related to COVID-19 and elect to use such leave, consistent with company policies and any applicable collective bargaining agreements.  Employees may not be required to use existing sick leave, vacation or PTO PRIOR to use of the paid sick leave benefit provided under the Families First Coronavirus Response Act.

Employers should advise employees that they may also be eligible to receive certain state benefits to partially replace wages resulting from absences related to COVID-19 illness or quarantine.  The CA paid family leave program may provide some wage replacement for employees whose qualifying family members are ill due to COVID-19.  For details visit: https://edd.ca.gov/about_edd/coronavirus-2019.htm.

Be sure to communicate (in writing) to employees who are absent from work and using any of the above-referenced benefits that they should not be performing work during their absence.

Q.  Do I have to pay employees who have to work reduced hours or cannot work because they have to care for children whose schools/child care have closed?

A.  Yes.  Employers covered by the FFCRA are required to provide up to 10 days' paid sick leave and up to 12 weeks (10 of which are paid) of FMLA leave for this purpose.  Employees also must be allowed to use their accrued paid sick leave under California law.  Employees may not be required to use their CA-accrued paid sick leave; nor can employees be required to provide a doctor’s note in order to use their paid sick leave.  Employees who are absent from work and receiving paid sick leave should not be performing work.  For details visit: https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm.

Employers should also advise employees who cannot work or must work a reduced schedule because of COVID-19-related school closures that they may be eligible to receive state unemployment insurance benefits.  For detailed information, visit: https://edd.ca.gov/about_edd/coronavirus-2019.htm.

Q.  Can I reduce my employees’ hours to save costs during this crisis?

A.  Yes, but use caution with exempt employees.  Non-exempt employees need only be paid for time they actually work, so their hours may be reduced.  Exempt employees must be paid their normal weekly salary during any week in which they perform any work.  However, if they are at-will employees, you and they can agree to a salary reduction as long as the salary still meets the minimum salary basis to be exempt.  You may also furlough them on a weekly basis and, as long as they are not working, they will not be paid.  In no circumstance may you reduce an exempt employee's salary for a partial DAY of work.  It is advisable to provide employees with as much advance notice of a reduction in hours or work schedule as possible.

Employers should advise employees that state unemployment insurance benefits may be available to eligible employees whose hours are reduced due to COVID-19.  Governor Newsom issued an Executive Order waiving the one-week waiting period for unemployment insurance benefits.  For details visit: https://edd.ca.gov/about_edd/coronavirus-2019.htm.

Be sure to communicate (in writing) to employees who are absent from work and using any of the above-referenced benefits that they should not be performing work during their absence.

Q.  If I decide to lay employees off due to the COVID-19 crisis, what am I required to pay to them?

A.  Employers must pay out all accrued, unused vacation (along with all final wages) to employees who are laid off as a result of the overarching COVID-19 crisis, at the time of lay-off.

Q.  Can we ask employees if they have medical conditions that make them at higher risk for experiencing serious symptoms of COVID-19?

A.  Medical inquiries are, generally, not recommended.  You can inform employees of the general guidance on who is considered high risk (those 65 and older (some state and local orders say 60 and older) and those with certain underlying medical conditions) and tell them that if they are in a high risk group to let you know so that they can either be placed on leave or a telecommuting arrangement worked out.  The EEOC posted guidance on March 18, 2020 that employers may ask employees who call in sick whether those employees are experiencing COVID-19 symptoms, like fever, chills, cough, shortness of breath and/or sore throat.  Such information must be maintained as a confidential medical record to comply with the ADA.  California’s Department of Fair Employment and Housing (DFEH) advises that employers may ask employees if they are experiencing COVID-19 symptoms, such as fever, chills, cough or sore throat.  Note that, gathering such information may implicate additional CCPA (California Consumer Privacy Act) compliance in California.  See the CCPA section of this webpage.

Q.  Can we require all employees to submit to temperature checks before starting their shifts?

A.  Under updated guidance issued by the EEOC on March 18, 2020, employers are permitted to conduct temperature checks of employees entering the workplace as a means of prevention.  However, this may be of limited utility because individuals carrying Coronavirus may not necessarily have a fever.  The DFEH advises that employers may measure employees’ body temperature for the limited purpose of evaluating the risk that an employee’s presence poses to others in the workplace due to COVID-19.  Additionally, temperature checks may implicate additional CCPA (California Consumer Privacy Act) compliance in California.

Q.  Can we prohibit all employees who are 65 and older from working (unless they can work from home)?

A.  The answer is “probably,” because these individuals are in a high risk group that has been advised and/or directed to stay home.  However, if you clearly advise employees in the high risk groups that they are encouraged to stay home and they knowingly and voluntarily decline to do so, you may be at risk of an age discrimination claim if you refuse to allow them to work (particularly if without pay), even though you have an essential business and they are an essential worker who is exempt from any applicable shelter-in-place order. However, it is advisable to review any state and local shelter in place order(s) applicable to your specific employees.  Some orders appear to expressly require excluding older workers from reporting to the worksite.

Q.  Can we require a doctor’s note if an employee says they cannot work for COVID-19 reasons?

A.  California state and local laws limit the circumstances under which an employer may require a doctor's note for COVID-19 reasons.  Generally, documentation, including a doctor's note, is not required to substantiate the need for leave.  For paid leave being taken under the FFCRA, please see our Q&A above under the FFCRA section.

Q:  Has California’s Department of Fair Employment and Housing (DFEH) provided any guidance to employers?

A.  Yes, the DFEH recently published guidance related to public health recommendations, sending employees home, medical information, privacy, protective equipment, CFRA leave, and reasonable accommodation.  https://www.cdflaborlaw.com/_images/content/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf

Q.  Can an employee take FMLA/CFRA leave for a COVID-19 absence?

A.  If an employee is ill and/or is caring for a covered family member who is ill, and the illness qualifies as a serious health condition under FMLA/CFRA, then yes. Additionally, the new federal law expands the FMLA to allow FMLA leave to be used by almost any employee to care for a child whose school or child care has closed due to the public health emergency.  Expanded FMLA leave taken to care for a child whose school is closed will not qualify as CFRA leave because it is not a covered reason for using CFRA leave.  It will only count as FMLA leave.

Q: Are employees who cannot work because they contracted COVID-19 entitled to job-protected leave under the CFRA?

A.  It depends.  The DFEH concluded that COVID-19 will qualify as a serious health condition for CFRA purposes if it results in inpatient care, continuing treatment, supervision by a health care provider, or if it leads to other conditions such as pneumonia.

Q:  May I require medical certification to support an employee’s request for CFRA leave?

A.  The DFEH advises that while an employer has the right to receive medical certification within 15 days of an employee’s request for CFRA leave, it is not practical for employees to obtain certifications when medical providers are tending to the emergency needs of others and, therefore, employers must use their judgment and recommendations from public health officials as to whether to waive certification requirements.

Q:  Are employees with an illness related to COVID-19, who are not eligible for CFRA leave, entitled to an accommodation if they cannot go to work?

A.  Probably.  Unpaid leave and work from home are both forms of accommodation that California employers of five or more employees should consider when evaluating whether an accommodation is reasonable or whether it would impose an undue hardship.  The DFEH has not determined that COVID-19 rises to the level of a disability requiring accommodation, as compared to a seasonal flu, but that whether COVID-19 is a disability is a fact based determination in each case.

Q:  If my employee seeks an accommodation because the employee is disabled by COVID-19, am I entitled to require medical documentation as to the existence of the disability and the need for an accommodation?

A.  Probably.  The DFEH recognizes that an employer is, generally, entitled to medical documentation to support an accommodation request.  However, the DFEH recommends that employers waive such a requirement until a time when the employee can reasonably obtain such information because it may be impractical to obtain medical documentation in the midst of a pandemic.

Q:  What other types of accommodation should I prepare for?

A.  If personal protective gear, such as masks, gloves, gowns or face shields are required to perform the employees’ functions, an employer should be prepared to accommodate disabled employees with special gowns designed to accommodate wheelchairs and/or non-latex gloves, unless doing so constitutes an undue hardship.

Q:  Will the DFEH continue to aggressively monitor and prosecute disability and other discrimination claims arising out of employment?

A.  Yes.  The DFEH makes an effort to remind employers that they must continue to accommodate the needs of all disabled employees and that they must not discriminate due to an employee’s race or national origin.

California Food Sector

Executive Order Requires Large Employers To Provide COVID-19 Sick Leave To Food Sector Essential Workers

On April 16, 2020, Governor Newsom issued Executive Order N-51-20, requiring the food sector “hiring entities” with 500 or more employees in the US to provide paid sick leave to essential workers for certain COVID-19 related reasons called COVID-19 Supplemental Paid Sick.  A copy of the Executive Order is available here.  This Executive Order is intended to provide sick pay for essential food sector workers not covered by the federal Families First Coronavirus Response Act (FFCRA) for certain COVID-19 related reasons (Food sector workers working for larger employers).

The California Labor Commissioner’s office recently published FAQs on the new Executive Order.  Link available here.

Below are some key aspects of the Executive Order, as interpreted by the FAQs.

Q.  Which employers are covered?

A.  This Executive Order applies to a “hiring entity” that has 500 or more employees nationwide, regardless of how many of those employees are located in California.  A hiring entity is broadly defined in the Executive Order, including any type of private sole proprietor or business entity (corporations. partnerships, LLCs, LLPs, Delivery Network Companies, Transportation Network Companies, etc.).  To determine the 500 employee threshold, a hiring entity counts employees broadly, in the same way as in the FFCRA, 29 C.F.R. § 826.40.  The Executive Order does not apply to public employers (which are covered by the FFCRA).

Q.  Which workers are covered?

A.  In addition to the hiring entity size factor, to qualify for this paid sick leave, workers must be a food sector worker performing work and:

  1. be exempt from the Stay-at-Home Order (EO N-33-20);
  2. perform work for the business outside the home; and
  3. satisfy one of the following:
  • Work in one of the industries or occupations:
    • the canning, freezing, and preserving industry (IWC Wage Order 3-2001 § 2(B));
    • processing agricultural products after harvest (IWC Wage Order 8-2001 § 2(H));
    • facilities on a farm that prepare products for market (IWC Wage Order 13-2001 § 2(H));
    • general agricultural occupations (IWC Wage Order 14-2001 § 2(D));
  • Work for a business that runs a food facility, which includes grocery stores, fast-food restaurants, and distribution centers;
  •  Any operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, or
  • Deliver food from a food facility for or through a hiring entity.

Thus, the type of food sector workers the Executive Order covers ranges from farmworkers to those workers who work in the retail food supply chain, including pick-up, delivery, supply, packaging, retail, or preparation.  This includes grocery workers, restaurant or fast-food workers, workers at warehouses where food is stored, and grocery and restaurant delivery.

While the Executive Order appears to require a covered hiring entity to provide sick pay to all food sector workers who perform work for or through the hiring entity, regardless of whether they are deemed employees of the hiring entity, persons receiving FFCRA paid sick should not be entitled to double-dip. 

Q.  What illnesses are covered?

A.  To qualify for the sick pay, the food sector worker must be unable to work due to one of the following three reasons:

  • The worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  • The worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
  • The worker is prohibited from working by the worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

Even if the worker is not sick with COVID-19, if a feed sector worker is exposed to someone diagnosed with COVID-19 or experiences symptoms and a stay-at-home order applies, a medical professional recommends self-quarantine or a hiring entity requires other workers to stay the food sector co-workers will be entitled to sick pay until they are allowed to return to work up to the limit allowed under the Executive Order.

Q.  What triggers the right to supplemental paid sick leave?

A.  The worker must make a verbal or written request to the hiring entity.  Currently, there does not appear to be any requirement for the worker to provide documentation, similar to other COVID-19 sick pay provisions. 

Q.  Are there any exceptions?

A.  Yes, if, on April 16, 2020, a hiring entity provided paid benefits to compensate workers for the same purposes as the Executive Order at an equal or higher level than the Executive Order, that hiring entity does is exempt from providing additional sick leave under the Executive Order.  Thus, these sick leave benefits are not in addition to what is already provided, if the employer’s existing sick leave/PTO policies would be applicable to the employees who qualify for sick leave under the Executive Order.

Q.  How much paid sick pay do full-time and part-time employees get under the Executive Order?

A.  Yes, a food sector worker who is considered full-time or who worked or was scheduled to work an average of at least 40 hours per week in the two weeks before the leave is taken is entitled to up to 80 hours of sick pay.

A part-time food sector worker with a regular weekly schedule is entitled to the number of hours he/she is normally scheduled to work over two weeks.  For a part-time worker with a variable schedule, the worker is entitled to up to fourteen times the average number of hours worked each day for or through that hiring entity in the prior six months.  For example, if the worker worked an average of 2 hours per day over the last six months, he/she would be entitled to up to 28 hours of sick pay.  If the worker has worked for the hiring entity for fewer than six months, the calculation is based on the average daily hours worked for the hiring entity.

Q.  How is paid sick leave calculated?

A.  The food sector worker is entitled to the highest rate of:

  • the worker’s regular rate of pay for the last pay period;
  • the state minimum wage; or
  • the local minimum wage.

However, there is a cap.  A hiring entity is not required to pay more than $511 per day and $5,110 in the aggregate in sick pay to a food sector worker under this Executive Order.

Q.  How long is this Executive Order In place?

A.  The Executive Order is effective immediately, and remains effective for the duration of any statewide stay-at-home order.  A food sector worker who starts paid sick leave when such order expires is entitled to the full amount of paid sick leave the Executive Order.

Q.  Is a hiring entity required to post a notice?

A.  Yes, there is a posting requirement.  The poster is available here.  Hiring entities are required under Labor Code section 247 to display a poster in a conspicuous place that contains information about this sick leave.  If a hiring entity’s food sector workers do not frequent a workplace, the hiring entity may satisfy the notice requirement by disseminating notice through electronic means. 

Q.  What are the other important parts of the Executive Order?

The Executive Order also provides that food sector workers must be allowed to wash their hands every 30 minutes (and additionally if needed) if they work in a “Food Facility” defined by the Health and Safety Code.  This applies in any operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level.  The hand-washing provision will be enforced by local public health agencies.

Workers using or attempting to exercise their rights under this Executive Order are protected from retaliation under Labor Code section 246.5(c).  If a food sector worker is not provided with the required sick pay, or if the food sector worker believes that he/she is retaliated against regarding this Executive Order, the worker may file a claim or a report of a labor law violation with the Labor Commissioner’s Office, the state agency charged with enforcement.

City Issues

Los Angeles

Q:  Do any cities have special ordinances or orders related to paid sick leave and COVID-19?

A.  Yes.  Los Angeles, San Francisco (pending mayoral approval) (https://sfgov.legistar.com/View.ashx?M=F&ID=8227533&GUID=308B416C-D945-47F9-9D89-F89C7B7F1161), San Jose (https://records.sanjoseca.gov/Ordinances/ORD30390.pdf) and others are under development.

Q. What is the new Los Angeles Emergency Paid Sick Leave Order?

A.  On April 7, 2020, Los Angeles' Mayor issued an emergency paid sick leave order that requires certain employers to provide additional paid sick leave to employees for COVID-19 reasons.  The order is effective immediately.  You can find CDF's blog post on this subject here.

Q.  Which employers are covered by the new LA paid sick leave order?

A.  The COVID-19 paid sick leave Order applies to employers that have either: (i) 500 or more employees within the City of Los Angeles; or (ii) 2,000 or more employees within the United States. 

Q.  Which employees are covered by the new LA paid sick leave order?

A.  Employees covered by the Order are those who perform any work within the geographic boundaries of the City of Los Angeles and who were continuously employed by the same employer from February 3, 2020 to March 4, 2020.

Q.  What are qualifying reasons to use supplemental paid sick leave under the LA order?

A.  Covered employers are required to provide paid sick leave for any of the following reasons:

  1. The Employee takes time off due to COVID-19 infection or because a public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
  2. The employee takes time off work because the Employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
  3. The employee takes time off work because the employee needs to care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine;
  4. The employee takes time off work because the employee needs to provide care for a family member whose senior care provider or whose school or child care provider caring for a child under the age of 18 temporarily ceases operations in response to a public health or other public officials recommendation.  This provision is only applicable to an employee who is unable to secure a reasonable alternative caregiver.

Q.  How much supplemental paid sick leave does a covered employer have to provide under the LA order?

A.  A full-time employee (those who work 40 hours per week or are classified as full-time by the employer) must be provided with 80 hours of COVID-19 paid sick leave.  The pay is calculated based on the employee’s average two-week pay over the period February 3, 2020 to March 4, 2020.  An employer need not pay an employee more than $511 per day or $5,110 in the aggregate, however.

A part-time employee must be provided with COVID-19 paid sick leave in an amount no greater than the employee’s average two-week pay over the period of February 3, 2020 to March 4, 2020, again subject to a cap of $511 per day and $5,110 in the aggregate.

Q.  Can I require a doctor's note or other documentation to support an employee's request to use paid sick leave under the LA order?

A.  No.  An employee can make an oral or written request to use COVID-19 paid sick leave.  An employer may not require a doctor’s note or other documentation to support the use of leave.

Q.  Is there any offset for paid leave already provided by a covered employer?

A.  An employer’s obligation to provide supplemental COVID-19 paid sick leave under the Order is reduced for every hour of paid leave the employer provided to an employee, not including the employee’s previously accrued hours, for COVID-19 reasons after March 4, 2020.  In other words, the offset appears only to apply to ADDITIONAL paid time off provided by an employer to employees for COVID-19 reasons, over and above any paid sick leave or vacation accruals under pre-existing employer policies, after March 4, 2020.

Q.  Are there any exemptions from this new LA supplemental paid sick leave order?

A.  Yes.  The Order exempts the following:

  1. Emergency and Health Services Personnel.  Emergency Personnel refers to individuals specified in the April 1, 2020 City of Los Angeles Safer at Home emergency order Paragraph 5(vi), including all first responders, gang and crisis intervention workers, public health workers, emergency management personnel, emergency dispatchers, law enforcement personnel, and related contractors and others working for emergency services providers.  A health care worker encompasses individuals described in California Government Code Section 12945.2(c)(6) or individuals, including contract workers, working at a health facility licensed under California Health & Safety Code Section 1250.
  2. Critical Parcel Delivery Employers.  The Order states that employers of employees that provide global parcel delivery services are exempt.
  3. Employers That Already Have Generous Leave Policies.  If an employer has a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually, the employer is exempt from any obligation to provide supplemental leave pursuant to the Order for the employee that received the more generous paid leave.
  4. New Business Exemption.  The Order exempts new businesses that started in the City or businesses that relocated from outside the City on or after September 4, 2019 through March 4, 2020. To qualify, an employer could not have been in business in the City in the 2018 tax year.  However, the following businesses do not qualify for the new business exemption:  construction businesses as defined in Section 21.30(b).1 of the Los Angeles Municipal Code or film producers as defined in Section 21.109 of the Los Angeles Municipal Code.
  5. Government.  The Order does not apply to employees of government agencies working within the course and scope of their public service employment.
  6. Closed Businesses and Organizations.  Any business or organization that was closed or not operating for a period of 14 or more days due to a city official’s emergency order because of the COVID-19 pandemic or provided at least 14 days of leave are exempt from the requirements of the Order.
  7. Collective Bargaining Agreements:  Employees covered by CBAs that include COVID-19 sick leave provisions are not covered by the Order.  If a CBA does not provide COVID-19 sick leave provisions, employers must comply with the Order unless and until the CBA is amended to expressly waive the provisions of the Order.

Q.  How is the new LA paid sick leave order enforced?

A.  The Order of course prohibits retaliation against an employee for exercising rights under the Order.  An employee whose rights are violated may bring a civil action seeking, as applicable, reinstatement, back pay and paid sick leave unlawfully withheld, and attorneys’ fees and costs.

Q.  Can employees waive their rights under the new LA supplemental paid sick leave order?

A.  No, unless the employee is covered by a collective bargaining agreement which expressly waives the rights under the order.

Q.  When does the LA supplemental paid sick leave order expire?

A.  The Order is in effect until two calendar weeks after the expiration of the local COVID-19 public health emergency.

Click here for the most recent information about City of Los Angeles Re-Opening Order.

San Francisco

Q.   Does San Francisco have an emergency paid sick leave ordinance specific to COVID-19?  

A.  On April 7, 2020, The San Francisco Board of Supervisors unanimously approved an emergency ordinance requiring all employers with 500 or more workers to provide up to two weeks of paid sick leave for COVID-19 to employees, effective April 17, 2020.  (https://sfgov.legistar.com/View.ashx?M=F&ID=8227533&GUID=308B416C-D945-47F9-9D89-F89C7B7F1161) Mayoral approval is expected.  For additional detail, see  https://www.callaborlaw.com/entry/san-francisco-and-san-jose-adopt-new-covid-19-paid-sick-leave-requirements

Q.  Which Employers are Covered?

A. San Francisco employers who are not covered by the FFCRA must provide the same paid sick leave benefits as those who ARE covered by the FFCRA.  So, private sector employers with 500 or more employees nationally must provide additional paid sick leave to employees working in San Francisco. 

Q.  Who are Covered Employees?

A.  A “covered employee” is an employee who has performed at least 56 hours of work within the city of San Francisco in the last year.  Health care providers and emergency responders, as those terms are defined for purposes of the FFCRA are exempt.  See the DOL’s guidance on these terms here (Questions 56-57) https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

Q. How Much Paid Sick Leave Will Employees Receive?

A. Covered employers must provide up to 80 hours of paid sick leave to full-time employees.  Part-time employees are entitled to sick leave equal to the number of hours they work on average in a two week period. 

The COVID-19 public health emergency paid sick leave is on top of existing paid sick leave required by law and/or provided under company policies.  However, an employer is entitled to a limited offset for any paid leave provided for COVID-19 reasons after February 25, 2020 that exceeded an employee’s previously accrued paid sick leave hours.  An employer cannot, however, require an employee to exhaust previously accrued paid time off prior to taking the emergency paid sick leave.

Q.  When May An Employee Seek The Emergency Paid Sick Leave?

A.  An employee may use emergency paid sick leave if he/she is unable to work (or telework) for the following reasons:

  • The employee is subject to an individual or general federal, state, or local quarantine or isolation order related to COVID-19, including state or local shelter at home orders.  It also includes an employee who is a member of a vulnerable population as defined by state and local shelter at home orders.
  • The employee has been advised by a health care provider to self-quarantine.
  • The employee is experiencing symptoms associated with COVID-19 and seeking a medical diagnosis
  • The employee is caring for a family member who is subject to an order as described in subsection (1), has been advised as described in subsection (2), or is experiencing symptoms as described in subsection (3).
  • The employee is caring for a family member if the school or place of care of the family member has been closed, or the care provider of such family member is unavailable, due to the public health emergency.
  • The employee is experiencing any other substantially similar condition specified by the Local Health Officer, or under Section 5102(a)(6) of the FFCRA, by the United States Secretary of Health and Human Services.

Q.  When may employees use emergency paid sick leave?

A.  An employer may not require employees to use paid sick leave in increments of more than one hour.

Q.  How Is Emergency Paid Sick Leave Calculated? 

A.  Emergency paid sick leave must be paid using the same method as is used for normal paid sick leave provided in compliance with San Francisco’s pre-existing paid sick leave ordinance.  (For more detailed information on this, please see https://sfgov.org/olse/paid-sick-leave-ordinance-pslo.)

Q.  Is Emergency Paid Sick Leave Capped, like FFCRA paid sick leave?

A.  The caps on emergency paid sick leave compensation that are set forth in the FFCRA do not apply.

Q.  Can I Require Employees to Bring a Doctor’s Note to Prove They Were Actually Out?

A.  No.  An employer can require an employee to provide the basis (reason) for using the emergency paid sick leave, but may not require disclosure of private health information and may not require documentation (including a doctor’s note) to substantiate a leave request.

Q.  When Does It End?

A.  The emergency paid sick leave benefit expires 61 days after its enactment [unless extended] or upon termination of the public health emergency, whichever occurs first.  An employee is not entitled to carry over paid sick leave provided under the ordinance and is not entitled to payout of any unused paid sick leave.

Q.  Is There Any Exemption if Employees are Under a Collective Bargaining Agreement?

A.  The ordinance does not apply to employees covered by a CBA if the CBA expressly waives the requirements of the ordinance.  Few current CBAs will expressly waive the ordinance, therefore, consider contacting the relevant labor union to add an amendment to exempt the San Francisco ordinance.

Q.  Do I Have to Post a Notice?

A.  Yes.  Employers are required to provide employees notice of their rights under the ordinance within three days of the model notice being published.  For the model notice, see https://sfgov.org/olse/sites/default/files/PHEL%20Poster%204.17.2020%20English.pdf

Employers are also required to provide notice to employees of the amount of public health emergency paid sick leave they have available.  This information should be included on the same notice (or pay stub) provided to employees each pay period that shows accrued sick leave hours (under existing state and local paid sick leave laws).

Q.   Does San Francisco have an emergency paid sick leave law specific to COVID-19?  

A.  Not yet, but it is in the works.  San Francisco already had a paid sick leave ordinance in place prior to the COVID-19 health emergency.  San Francisco issued COVID-19 specific guidance on use of paid sick leave, and also implement a program whereby the City would help employers who voluntarily participate in a City program to provide additional paid sick leave for employees to use for COVID-19 purposes.   Information on San Francisco's local paid sick leave guidance is here:  https://www.callaborlaw.com/entry/san-francisco-olse-issues-new-guidance-on-use-of-paid-sick-leave-for-covid-19-related-reasons.  

Q:  My business is in San Francisco, I have employees claiming that they need paid sick leave due to COVID-19, I don’t believe them, may I condition use of paid sick leave on employees providing documentation of their condition?

A.  No.  An employer may not require a doctor’s note or other documentation for an employee’s use of paid sick leave, during the duration of the local health emergency relating to COVID-19.  https://www.callaborlaw.com/entry/san-francisco-olse-issues-new-guidance-on-use-of-paid-sick-leave-for-covid-19-related-reasons

Q:  When may San Francisco employees use paid sick leave?

A.  There are, essentially, four conditions when they may use paid sick leave:

  • Anytime that public health officials or healthcare providers require or recommend that the employee isolate or quarantine to prevent the spread of disease, or to provide care for a family member so ordered;
  • Employees that are part of the “vulnerable population” under the San Francisco Department of Public Health’s (DPH) March 6, 2020 guidelines or any subsequent updates.  People who are 60 years old or older or a person with a health condition such as heart disease, lung disease, diabetes, kidney disease, or weakened immune system;
  • If the employee’s business or a work location temporarily ceases operations in response to a public health or other public official’s recommendation, except for furloughs, lay-offs, or reduced hours, see below;
  • If the employee needs to provide care for a family member whose school, child care provider, senior care provider, or work temporarily ceases operations in response to a public health or other public official’s recommendation.

Q:  What did San Francisco previously require?

A.  San Francisco already had a paid sick leave ordinance in place prior to the COVID-19 health emergency.  San Francisco issued COVID-19 specific guidance on use of paid sick leave, and also implement a program whereby the City would help employers who voluntarily participate in a City program to provide additional paid sick leave for employees to use for COVID-19 purposes.   Information on San Francisco's local paid sick leave guidance is here:  https://www.callaborlaw.com/entry/san-francisco-olse-issues-new-guidance-on-use-of-paid-sick-leave-for-covid-19-related-reasons

Q:  At this time, in San Francisco, are there any changes in employment that are not eligible for paid sick leave?

A.  Yes.  Employees who are fired, laid off, or had their hours reduced or eliminated (i.e. temporary lay-offs or furloughs) are not eligible.

San Jose

Q. Does San Jose have a paid sick leave ordinance?

A.  Yes, The San Jose paid sick leave ordinance took effect on April 7, 2020.

Q. Who are covered employers?

A.  All employers who are not required to provide paid sick leave under the FFCRA.  That means it applies to private sector employers with 500 or more employees, small employers with less than 50 employees (to the extent they are exempt from the FFCRA’s paid sick leave requirements), and employers of health care providers and emergency responders (to the extent those employees have been exempted from the FFCRA’s paid sick leave requirements).  However, if an employer already provides paid time off that is at least equivalent to the amount of leave required by the ordinance, then the employer need not provide additional paid sick leave.  If an employer provides some paid time off, but less than the amount required by the ordinance, then the employer must make up the difference by providing additional paid sick leave.  The ordinance also does not apply to employers that operate a hospital if, by April 21, 2020, the employer provides employees with some combination of paid time off that is at least equivalent to the amount of paid sick leave required by the ordinance.

Q.  Which Employees Are Covered?

A.  Employees who work for a covered employer and have worked at least 2 hours within the geographic boundaries of the City of San Jose, and who leave their residences to perform essential work that is exempted from state and local shelter at home orders are covered.

Q.  How Much Paid Sick Leave Will Employees Receive?

A.  A full-time employee must be provided 80 hours of paid sick leave.  A part-time employee must be provided with paid sick leave equivalent to their average number of hours worked in a two-week period. 

Q. When May An Employee Seek The Emergency Paid Sick Leave?

A.  An employee who is able to work from home is not entitled to use paid sick leave.  Paid sick leave may be used for the following purposes:

  • The employee is subject to quarantine or isolation by federal, state or local order due to COVID-19, or is caring for someone who is quarantined or isolated due to COVID-19;
  • The employee is advised by a health care provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a health care provider;
  • The employee experiences symptoms of COVID-19 and is seeking medical diagnosis; or
  • The employee is caring for a minor child because of a school or daycare closure due to COVID-19.

Q.  How Is Paid Sick Leave Calculated?

A.  An employee is entitled to be paid his/her regular rate of pay up to a cap of $511 per day or $5,110 in the aggregate when the employee uses paid sick leave due to the employee’s own COVID-19 quarantine/isolation/symptoms.  The employee is entitled to be paid two-thirds his/her regular rate of pay up to a cap of $200 per day or $2,000 in the aggregate when the employee uses paid sick leave to care for someone else for COVID-19 reasons.  For a part-time employee, the pay is based on the average number of hours the employee worked per day in the six months preceding the request for paid sick leave.  If the employee has not been employed for six months, the amount of paid sick leave is based on the number of hours the employer expected the employee to work at the time of hire.

Q.  When Does it End?

A.  San Jose’s covered employees right to paid sick leave ends December 31, 2020.  There is no right to carryover unused paid sick leave, nor any right to payout of any unused sick leave.


EXPOSURE TO COVID-19 ISSUES

Q.  What if an employee refuses to work because of fear of contracting the virus?

A.  Fear alone is not a reason to refuse to come to work if the employee works for an essential business that is exempt from any applicable shelter in place order. However, please remember that if the employee is in a high risk group that has been advised/directed to isolate at home, and/or has other circumstances that qualify for paid sick leave, accommodation may be required.  Additionally, even with essential businesses, employees are supposed to be encouraged and permitted to work from home to the extent practicable.  Additionally, be mindful of avoiding the possibility of a retaliation claim in circumstances where an employee refuses to work because of a reasonable belief that doing so would place the employee in danger of death or serious injury.

Q.  Can I refuse to let an employee work after the employee traveled to a COVID-19 hotspot or was exposed to the virus, for 14 days, provided the employee remains symptom-free?

A.  Yes.  An employee who poses a direct threat to the workplace based on objective, factual information, not on subjective perceptions or irrational fears will not be subject to ADA protection.  Therefore, as long as up to date CDC Travel Advisories, or similar government  information, provide the basis for the concern, not an employee’s national origin, an employer may rely on that guidance as objective to make reasonable assessments of conditions in their workplace.

Employers may have compelling business reasons, such as the safety of its employees or customers, to prefer an employee take time off or work remotely following an employee’s travel to an area with a widespread or ongoing community spread or exposure to the virus.  Concerns such as these are particularly common for employers in the health care industry when employees have direct patient contact.

You should note that while the CDC guidance previously recommended a 14-day self-quarantine for all international travelers and following domestic travel to a high-rate COVID-19 state, the CDC has removed that guidance from its website and now simply recommends social distancing, masks, hand washing and watch for COVID-19 symptoms. 

Q.  Is there any updated CDC guidance on returning workers to the workplace who may have been exposed to COVID-19?

A.  Yes, on April 9, 2020, the CDC posted interim guidance that provides specific precautions to allow critical infrastructure employees who were potentially exposed to COVID-19 to return to work.  https://www.cdc.gov/coronavirus/2019-ncov/downloads/critical-workers-implementing-safety-practices.pdf

Q.  What does potential exposure mean?

A.  An employee obtains potential exposure if they are in household or close contact (less than 6 feet) of an individual confirmed or suspected of COVID-19, including contact for the period of 48 hours before the COVID-19 positive person became symptomatic.

Q. What precautions does the CDC require for employees who had potential exposure?

A.  There are several steps employers should take to ensure that the employee with potential exposure does not have COVID-19 or spread it further:

  1. Temperature checks, ideally, occur before entering the facility and should be taken along with an assessment of symptoms prior to the start of work.
  2. Employees should be directed to self-monitor under the supervision on the Company’s health officer.
  3. Employee should wear a face mask at all times in the workplace for 14 days after the last exposure.  Shortages of face masks may be rectified by approving employees’ supplied cloth face coverings.
  4. Employee should maintain 6 feet distancing while at work.
  5. Common office areas, bathrooms, offices and shared electronic equipment should be cleaned and disinfected routinely.

Q:  What is “Close Contact” exposure with a COVID+ employee?

A.  The most recent CDC definition of “Close Contact” expands the universe of potential work place Close Contacts of COVID+ employees who will need to quarantine.  The CDC now defines “Close Contact” as someone within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset or 2 days prior to the taking of the COVID+ test until the time the COVID+ person is isolated.

The CDC has also published additional factors to consider, including proximity, duration, symptomatic persons, respiratory aerosols (whether the employee was coughing/sneezing) and other environmental factors such as crowding, and adequacy of ventilation.  If the cumulative time is not 15 minutes but other factors exist, consider making the conservative determination that such person should be quarantied as a Close Contact.

Q:  What does that mean, practically speaking?

A:  After an employer learns an employee tested positive for COVID, the employer should determine whether any co-workers were within 6 feet for a combined total of 15 minutes in any 24-hour period for the two days before the COVID+ employee started showing symptoms or an employee with no symptoms took a COVID test that turned out positive.  An employee who was in Close Contact should be sent home to self-quarantine for 14 days.  The new Close Contact definition may require quarantining more employees than was required under the previous standard.  To determine whether there were employees in Close Contact, talk to the COVID+ employee, look over scheduling records, time logs and attendance records, as well as video tape or other resources to analyze whether employees were in Close Contact with the infected person.

Q.  Can I require an employee to submit a doctor’s note before returning to work after exhibiting symptoms of the coronavirus or being quarantined?

A.  Yes.  You may require certification of fitness for duty.  The EEOC notes that employers should accept clinics' confirmations, forms and/or emails due to the crowded schedules of the doctors and other health care professionals.

Q.  Is there CDC guidance on when a COVID+ employee may return to the workplace?

A.  Yes.  This is a very difficult area to navigate as there are potentially privacy, accommodation and other issues present and because the CDC guidance in this area changes with some frequency, so check with your counsel before moving forward. 

The current CDC guidelines for most employees (unless they were hospitalized with COVID) provide that employees may return to work after a positive COVID test under the following conditions:

  1. People who test positive and had COVID symptoms may return to work after:
  • At least 10 days since symptoms first appeared and
  • At least 24 hours with no fever without fever-reducing medication and
  • Other symptoms of COVID-19 are improving (Loss of taste and smell may persist for weeks or months after recovery and need not delay the end of isolation​)
  1. People who test positive but never had symptoms, may return to work after:
  • At least 10 days since the date of positive test; or
  • In less than 10 days, under healthcare provider guidance and after two negative test results in a row, from tests done at least 24 hours apart.

 

OSHA/WORKPLACE SAFETY/WORKERS' COMPENSATION

Q: How did Governor Newsom’s Order impact Workers’ Compensation claims arising from COVID?

A.  Governor’s Newsom’s May 7, 2020 Executive Order N-63-20 created a rebuttable presumption that an employee claim that COVID was contracted in conjunction with employment would be covered by California’s Workers’ Compensation scheme.  This order was to last for 60 days.

Q:  Has the legislature passed any new laws to change the Executive Order?

A.  Yes.  SB-1159, signed by Governor Newsom on September 17, 2020 codifies and modifies the Governor’s Executive Order into Labor Code sections 3212.86, 3212.87 and 3212.88.  Click here for the link to text of Code.  The new labor code sections distinguish between COVID+ cases that arose March 19, 2020 and July 5, 2020 and those diagnosed after July 6, 2020. 

Q: How does it apply to employees diagnosed with COVID between March 19 and July 5, 2020?

A.  Any employee that has a COVID-19 related illness that occurs within 14 days after the last day the person worked will qualify for a presumption of Workers’ Compensation coverage.  Further, an employer has 30 days after the claim is made to accept or deny the claim.  If the claim is not denied, the presumption of industrial injury is only rebuttable by evidence discovered after the initial 30-day period.

Q: How does it apply to employees diagnosed with COVID between after July 5, 2020?

A.  The new law creates two different categories with slightly different rules. 

First, Section 3212.87 provides the presumption of compensable injury to specific first responders and health care professionals identified in the code.  It applies to these workers if they test positive on or after July 6, 2020 and within 14 days after their last day of work.  Testing must be under a PCR test and does not include employees working from home, except for providers of home supportive services.   Here, an employer has 30 days after the claim is made to accept or deny the claim.  If the claim is not denied, the presumption of industrial injury is only rebuttable by evidence discovered after the initial 30-day period.

Second, Section 3212.88 applies to all other employees who test positive during an outbreak at the employee’s specific place of employment after July 5, 2020 where the employer has 5 or more employees.  An outbreak is defined for employers with 100 or fewer employees as 4 employees testing positive with PCR tests within a 14 day period, or for employers with more than 100 employees, 4 percent of the employees testing positive.  Also, an outbreak is deemed to have occurred if the employer is closed by a local health department, OSHA or school superintendent due to risk of COVID-19 infection.  For these employees, the employer has 45 days to determine compensability from the date of the claim.  If the claim is denied or no decision is made timely, the presumption is disputable by evidence that may include an employers efforts to reduce potential workplace transmission and evidence of an employee’s non-occupational risks of COVID-19 infection, ie. an employees activitities outside the workplace.”          

Q:  Does an employer need to do anything else?

A.  YES!   The new law imposes additional, important notice requirements with accompanying potential civil penalties.  Employers must report to their carrier within three days of learning that an employee tested COVID+ (excluding personally identifying information), the date of the test, the place where the employee worked during the 14 days prior to the test and the number of employee at each place where the employee worked for the prior 45 days.

In addition, all employers with 5 or more employees have 30 days after the effective date of the law to provide their workers’ compensation carrier with the above information pertaining to all employees who tested COVID+ since July 6, 2020. 

Q.  If an employee tests positive for COVID-19, do I need to record it on my company’s Form 300?

A.  It depends.  Exemptions exist for small employers (10 or fewer employees) and those in certain industries.  Click here and here for more information. 

Otherwise, employers must record instances of employee workplace illness when it is “new” (i.e., employee did not experience before or, if they did, the employee completely recovered), “work-related,” and meets one or more of the following “general recording” criteria:

  • death;
  • one or more days away from work;
  • restricted work or transfer to another job;
  • medical treatment beyond first aid;
  • loss of consciousness; or
  • a significant injury or illness diagnosed by a physician or other licensed health care professional

(8 CCR 14300.7(b) – General Recording Criteria)

Q.  What exactly is a work-related injury or illness?

A.  An injury or illness is considered “work-related” when “an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.  Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in Section 14300.5(b)(2) specifically applies.”  8 CCR 14300.5(a).

Cal/OSHA provides the following guidance “when it is not obvious” whether the exposure occurred in the work environment.

“In these situations, you must evaluate the employee's work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.”  8 CCR 14300.5(b)(3)(emphasis added).

Q.  If an employee exhibits symptoms of COVID-19 at work, do I have to report it to Cal/OSHA?

A.  Again, it depends.  Cal/OSHA requires employers to immediately report a “serious injury or illness.”  A “serious injury or illness” is one that occurs “in a place of employment or in connection with any employment that requires inpatient hospitalization for other than medical observation or diagnostic testing, or in which an employee suffers an amputation, the loss of an eye, or any serious degree of permanent disfigurement, but does not include any injury or illness or death caused by an accident on a public street or highway, unless the accident occurred in a construction zone.”  8 CCR 330(h).

Therefore, if an employee falls ill during work (for whatever reason, including possible exposure to COVID-19) and is admitted as an inpatient to a hospital for other than medical observation or diagnostic testing, it needs to be reported.

The report must be made “immediately,” which means as soon as practical but not longer than 8 hours after the employer knows or with diligent inquiry would have known of the death or serious injury or illness.

Q.  What if an employee does not exhibit symptoms of COVID-19 at work, but I later learn that the employee has tested positive?  Assuming the employee requires hospitalization, how do I determine if I need to report the illness to Cal/OSHA?

A.  OSHA realizes that it may be difficult to assess whether a COVID-19 infection actually “occurred in connection with employment.” 

The employer should consider the following factors when making its determination to report or not:

  • Multiple cases in the workplace.
  • The type, extent and duration of contact the infected employee had at the work environment with other people, particularly the general public.
  • Physical distancing and other controls that impact the likelihood of work-related exposure.
  • Whether the employee had work-related contact with anyone who exhibited signs and symptoms of COVID-19.

Cal/OSHA takes the position that the employer should err on the side of caution and favor reporting, even when there is uncertainty about whether COVID-19 was contracted at work (see BOLD text below): 

“Even if an employer cannot confirm that the employee contracted COVID-19 at work, the employer should report the illness to Cal/OSHA if it results in in-patient hospitalization for treatment and if there is substantial reason to believe that the employee was exposed in their work environment.  Where there is uncertainty about whether an employee contracted COVID-19 at work, the employer should err on the side of reporting the illness to Cal/OSHA.

For more information, refer to the Cal/OSHA (FAQ) on Recording and Reporting Requirements for COVID-19 cases.  https://www.dir.ca.gov/dosh/coronavirus/Reporting-Requirements-COVID-19.htm

Q.  Does OSHA offer any other FAQs that help address worker safety in response to COVID-19?

A.  Federal OSHA (a.k.a. “Fed/OSHA”) has recently published a Frequently Asked Question page for COVID-19, found here: https://www.osha.gov/SLTC/covid-19/covid-19-faq.html

The FAQ provides useful, general information regarding COVID-19, such as cleaning, disinfecting, precautions to take to protect workers from COVID-19, Fed/OSHA’s policy generally encouraging use of face masks at work, etc.  The FAQ also contains many convenient links to pertinent sections of the CDC website. 

While this information is generally useful and should serve as a resource, employers need to remember that when conducting business in California, Cal/OSHA standards (not federal), will generally apply.  (There are some exceptions to Cal/OSHA jurisdiction, such as maritime employment, national parks, and Native American tribal lands, to name a few.)  Therefore, to the extent Fed/OSHA guidance differs from that issued by Cal/OSHA, California employers need to follow Cal/OSHA guidance.

Q.  Does Governor Newsom’s executive order – granting a presumption of industrial injury for employees who are diagnosed with COVID-19 within 14 days of performing work outside of their homes – affect my duties to record or report injuries to Cal/OSHA?

A.  No.  In order for an illness to be compensable under workers compensation law, it needs to “arise” out of employment or during the “course” of employment.  This is often referred to as “AOE/COE,” and is normally the employee’s burden to prove.  The newly created presumption only applies within the workers compensation arena, and there is no carryover of that presumption to an employer’s duty to report or record a COVID-19 case.

For instance, if an employee last worked at the office seven days ago and exhibited no symptoms, but then on the eighth day calls in to notify he has tested positive, no trigger is met requiring the illness be reported to Cal/OSHA.  While it will be presumed to be compensable for workers compensation purposes, the employee did not check-in to the hospital after exhibiting symptoms while last at work.

The same principle applies to recording of COVID-19 as a workplace illness.  Even if someone contracted the disease within a couple days of leaving the workplace, there is no presumption of workplace illness as far as OSHA recording purposes.  Employers should still make an assessment as to whether the exposure was work-related or not.  See CDF's recent blog post on this topic here and 8 CCR 14300.5 regarding how to determine “work-relatedness” for OSHA recording purposes.

Q.  Does OSHA have any COVID-19 specific requirements for employers?

A.  OSHA’s General Duty Clause, Section 5(a)(1) requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.

Based on information provided by the CDC, COVID-19 can be such a hazard, especially for older adults and people who have serious chronic medical conditions like heart disease, diabetes, and lung disease.

Q.  Does Cal-OSHA have any COVID-19 specific requirements for employers?

A.  Healthcare industry has specific regulations addressing Aerosol Transmissible Diseases.  See the Aerosol Transmissible Diseases (ATD) Standard (California Code of Regulations, Title 8, Section 5199).  https://www.dir.ca.gov/title8/5199.html

California’s Injury and Illness Prevention Plan (IIPP – Title 8, Section 3203) requires companies to have “hazard recognition” programs in place, and to remain vigilant as far as recognizing, isolating, and preventing possible COVID-19 exposure in the workplace.  Precautions depend on the nature and operational requirements of your company.

Consider the following:

  • Do not permit employees that traveled to CDC to Level 2 or 3 countries or other COVID-19 hotspot areas to enter the workplace until at least 14 days have passed, symptom free.  For more information visit: https://wwwnc.cdc.gov/travel/notices.
  • Remote work.
  • Keep a minimum 6-feet away from other employees.
  • Promote frequent and thorough hand washing, provide alcohol-based hand rubs containing at least 60% alcohol.
  • Covering coughs and sneezes in arm sleeve.
  • Elderly and other high-risk employees with underlying health conditions should be encouraged or required to work from home.
  • Be on the lookout for symptoms associated with COVID-19 infection, including fever, cough, and shortness of breath.
  • Employees who exhibit symptoms or feel ill should be sent home and other employees isolated from the workspace.
  • If COVID-19 exposure is confirmed, steps must be taken to isolate, disinfect, and rid the workplace of the virus, including possible use of outside third-party cleaning services.  Refer to CDC guidelines on the most recent methods to effectively disinfect and eliminate the virus from workplace surfaces and equipment.

Continue to monitor updates on preventing COVID-19, which can be found here.

For information on the most recent Cal/OSHA guidance, click here.


IMMIGRATION

Q.  If my H1-B employees or their spouse traveled to a country on the CDC COVID-19 travel advisory list, are they allowed to come to work?

A.  H1-B employees should be treated in the same manner as your other employees to protect your workplace.

Q.  If my H1-B employee cannot work due to the employee being quarantined due to COVID-19, am I required to pay that employee?

A.  Yes, even if similarly situated US workers are not paid.

Q.  If my H1-B employee cannot work due to the employee being self-quarantined due to COVID-19, am I required to pay that employee?

A.  Yes.  See answer above.

Q.  If my H1-B employee cannot work due to child-care issues because the employee’s kids’ school has closed due to the COVID-19 crisis, am I required to pay that employee?

A.  No, so long as the H1-B employee requests unpaid leave and cites a non-work related reason.

Q.  If I have to layoff, reduce the hours or furlough my H1-B employees, are they eligible for any Unemployment Insurance?

A.  No.  Nonimmigrant workers including H1-Bs are not eligible for unemployment benefits.  Non-immigrant are generally disqualified for most governmental benefits and become deportable/inadmissible if they are granted certain benefits.

Q.  If I terminate my H1-B employees due to government orders or lack of work due to COVID-19, will I be able to bring them back when things improve?

A.  Maybe – A terminated H1-B worker has 60 days to find another job or leave the country, so that employee might not be around to rehire.  Terminating the H1- employee requires the employer to pay the cost of a one way plane ticket back to his/her home country.  Additionally, terminating an H1-B employee requires giving notice to DHS, and incurring the expense and risk of denial of filing a new petition for the employee to be rehired.


CALIFORNIA WARN AND FEDERAL WARN

If a business is closing, laying off or furloughing a large number of employees, consult with counsel as the facts of each situation are different depending on your circumstances.

CAL-WARN

Q.  What is Cal-WARN?

A.  Cal-WARN is California’s version of the WARN Act.  California law requires employers to give employees advance notice of any mass layoff, relocation, or termination.  Under CA state law, a mass layoff is a layoff during any 30-day period of 50 or more full or part-time employees at a facility or part thereof that employs or has employed 75 persons within the preceding 12 months.  A relocation is the removal of all or substantially all industrial or commercial operations to a location that is 100 miles or more away.  Termination means ending or substantially ending industrial or commercial operations.

Q.  Tomorrow, I have to lay-off at least 50 employees from one location due to COVID-19, do I need to give out a Cal-WARN Act notice?

A.  If you had 75 or more employees at the facility where you plan to lay-off 50 or more employees, you must give California WARN notice in line with Governor Newsom’s March 17, 2020 Executive Order (“EO”), which suspends the 60 days’ advanced notice but adds requirements to the notice.  A lack of compliance with the notice may create significant exposure.  For more information visit:  https://www.callaborlaw.com/entry/california-governor-issues-order-relaxing-notice-requirements-under-cal-warn-for-coronavirus-related-layoffs.

Q. I am considering a two or three-week furlough of at least 50 employees, do I need to give out a Cal-WARN notice?

A.  Yes.  Even though a furlough is temporary, the employees are still separated from their positions and a  Cal-WARN notice serves to alert government officials to an unemployment situation.  For more information visit: https://www.callaborlaw.com/entry/considerations-for-businesses-contemplating-temporary-furloughs.

Q. I am considering reducing employee hours for a relatively short two to three week period of time, does it need to give out a Cal-WARN notice?

A.  No, Cal-WARN also does not specifically require notice for a reduction in employee hours, however, your employees may qualify for unemployment insurance benefits when hours are reduced.  Also, be aware that salary reductions tied to hours worked may destroy the employee’s exempt status, and exempt employees generally must be paid their full salary for a workweek in which they perform any work.  For more information visit: https://www.callaborlaw.com/entry/considerations-for-businesses-contemplating-temporary-furloughs.

Q.  How and when do I deliver the Cal-WARN Act notice?

A.  The EO suspends the 60-day requirement for advanced notice, so employers must give as much notice as possible.

First-class mail, personal delivery, or insert into pay envelopes.

Notice to the EDD may be effected via email at eddwarnnotice.edd.ca.gov.  To avoid the risk that the EDD will not be able to open an email attachment, the notice may be in the body of the email.  Likewise, employer’s contact information should be in the body of the email to permit the EDD to contact the employer regarding a faulty attachment.

Notice to the Local Workforce Development Areas administrators should be sent to the address indicated for your geographic area.  For more information visit: https://www.edd.ca.gov/Jobs_and_Training/Local_Area_Listing_by_County.htm.

Chief elected official.  Local Workforce Development area administrators assist employers with contacting the chief elected officials in the communities affected by the planned layoff or closing.

Q.  Last week, I laid off at least 50 employees from one location due to COVID-19, do I need to give out a Cal-WARN notice?

A.  Yes, a notice to the employees is in order, as the EO is retroactive to March 4, 2020.  The notice triggers other government resources intended to help the employers and the employees.  For more information visit: https://www.callaborlaw.com/entry/california-governor-issues-order-relaxing-notice-requirements-under-cal-warn-for-coronavirus-related-layoffs.

Federal WARN

Q.  What is Federal WARN?

A.  The Federal WARN Act requires companies to give employees advance notice if the employers is closing a plant or conducting a mass layoff.  The Federal WARN Act only covers employers with 100 or more employees.  A temporary or permanent plant closure is the shutdown of a single site of employment or one or more facilities or units within a single site of employment, if the shutdown results in an employment loss for 50 or more employees during any 30-day period.  A mass layoff is a reduction in force that is not a plant closure but results in loss of employment at any single site during any 30-day period of: (1) at least 33% of full-time employees and at least 50 or more full-time employees; or (2) at least 500 full-time employees.

Q.  Tomorrow, I have to lay off or furlough at least 50 employees from one location due to COVID-19, do I need to give out a federal WARN Act notice?

A.  Unless the furlough or layoff is for a period of less than six months, you must give federal WARN Act notice:

  • If you have 100 or more full time employees that worked 6 or more of the last 12 months, if a plant closing affects 50 or more employees during any 30-day period; or
  • If a "mass layoff" results in employment loss for either 500 or more employees, or 50-499 employees that make up at least 33% of the employers active workforce; or, potentially
  • If the number of  layoffs/furloughs reaches the threshold level during any 90-day period.

Q.  Does Federal WARN have any exceptions?

A.  Yes, there are exceptions for unforeseen circumstances and natural disasters that require as much notice as is practical.  While one or both exceptions likely applies to the COVID-19 pandemic, be sure to consult with counsel about your specific situation.

Q. I am considering reducing employee hours for a relatively short two to three week period of time, do I need to give out a Federal WARN notice?

A.  No, a short term reduction in hours does not trigger any notice requirements under the federal WARN Act, your employees may qualify for unemployment insurance benefits when hours are reduced.  Also, be aware that that salary reductions that are tied to hours worked may destroy the employee’s exempt status, and exempt employees generally must be paid their full salary for a workweek in which they perform any work.  For more information visit: https://www.callaborlaw.com/entry/considerations-for-businesses-contemplating-temporary-furloughs.

Q.  How and when do I deliver the federal WARN Act notice?

A.  While notice must be delivered 60 days before a plant closing, mass layoff or relocation, federal WARN forgives the notice requirement if there is a natural disaster or unforeseen business circumstances, in which case notice must be as soon as possible as follows:

  • First-class mail, personal delivery, or insert into pay envelopes.
  • Notice to the EDD may be effected via email.
  • Notice to the chief elected official:  The Local Workforce Development area administrators that correspond to location of the layoff, provided in the link, will assist with this notice.

CCPA

Q.  Does the COVID-19 crisis have any implications under the California Consumer Protection Act (CCPA) for employers?

A.  The California Consumer Protection Act (CCPA) currently requires certain employers to provide job applicants, new hires, and current employees with a notice stating the categories of personal information collected and the business purposes for which that personal information will be used.

If employers begin to collect medical information such as customer or employee temperature or COVID-19 testing results, employers may need to modify and/or issue new notices identifying medical information as a category. CCPA notices should be provided at or before the collection of personal information.


HELPFUL LINKS FOR EMPLOYERS

CDF provides links to help navigate government information, resources and programs=:

California

California – California Coronavirus (COVID-19) Response:  https://covid19.ca.gov/

California Department of Public Health (CDPH) – COVID-19 Update: CDPH’s updates and guidance on how to prevent and contain transmission of COVID-19 in the workplace.  https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.aspx

Labor & Workforce Development Agency (LWDA):  The LWDA is California’s cabinet-level agency to coordinate California’s workforce programs.  The LWDA’s webpage provides employee-focused information summarizing many of California’s benefits and information for employees impacted by COVID-19.  https://www.labor.ca.gov/coronavirus2019/

California Employment Development Department (EDD) – Coronavirus: https://edd.ca.gov/about_edd/coronavirus-2019.htm

California Unemployment Insurance: Employees may be eligible for partial wage replacement due to wage losses caused by COVID-19 ranging from $40 to $450 per week.  https://www.edd.ca.gov/Unemployment/Filing_a_Claim.htm

California Unemployment Insurance Work Sharing Program: Employers may participate in California’s Work Sharing Program.  https://www.edd.ca.gov/Unemployment/Work_Sharing_Program.htm

Labor & Workforce Development Agency (LWDA): The LWDA developed a webpage to make it easier and spread awareness through a centralized source of information. https://www.labor.ca.gov/coronavirus2019/

Payroll Tax Deadline Extension:  Governor Gavin Newsom's Executive Order N-25-20 provides employers up to a 60-day extension to file payroll reports and/or deposit state payroll taxes, without penalty or interest. https://www.edd.ca.gov/Payroll_Taxes/Emergency_and_Disaster_Assistance_for_Employers.htm

Federal

America's Job Center of California Rapid Response Services: The federal Rapid Response service under America's Job Center of California ("AJCC") is a resource for employers facing layoffs or with a need to access a skilled labor pool.  https://www.careeronestop.org/BusinessCenter/TrainAndRetain/ManageAndRetainEmployees/layoff-resources.aspx

Center for Disease Control (CDC) – Employer Resource Page:  The CDC has a resource page for employers for planning, preparing and responding to COVID-19.  This includes cleaning and disinfection recommendations and how to reduce employee transmission.  https://www.cdc.gov/coronavirus/2019-nCoV/index.html. For information on CDC’s Travel page, visit:  https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html

HIPAA Privacy and the Coronavirus:  The Office for Civil Rights (OCR) at the U.S. and Human Services (HHS) posted a bulletin to provide notice related to sharing patient information under the HIPAA Privacy Rule due to the outbreak of infectious disease or other emergency situation.  Privacy Rule protections are not set aside during an emergency.  https://www.hhs.gov/sites/default/files/february-2020-hipaa-and-novel-coronavirus.pdf

U.S. Department of Labor (DOL):  DOL provides information for employers responding to the COVID-19 pandemic, including guidance on the Families First Response Act related to Employee Paid Leave, the FLSA and the FMLA.  https://www.dol.gov/agencies/whd/pandemic

U.S. Equal Employment Opportunity Commission (EEOC):  EEOC guidance as to the intersection of COVID-19 with ADA rights.  https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

U.S. Occupational Safety and Health Administration (OSHA):  OSHA’s guidance to workplace preparations for COVID-19.  https://www.osha.gov/Publications/OSHA3990.pdf

U.S. Small Business Administration Disaster Loan Assistance:  Employers seeking loans due to COVID-19 impact may find application information from the small Business Administration (SBA).  https://www.sba.gov/about-sba/sba-newsroom/press-releases-media-advisories/sba-provide-disaster-assistance-loans-small-businesses-impacted-coronavirus-covid-19

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