COVID-19 Resources for California Employers

LAST UPDATED: August 20, 2021 

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

While the COVID-19 health crisis significantly impacted California's employers, employees, and families, as of June 15, 2021, the governor is terminating the executive orders that put into place the Stay Home Order and the Blueprint for a Safer Economy.  He is also phasing out the vast majority of executive actions put into place since March 2020 as part of the pandemic response, leaving in place a subset of provisions.  Although the California Dept. of Public Health (CDPH) issued a public health order on June 15, 2021, decreasing restrictions on the public, new guidance on masks, and ending the travel advisory on July 28, 2021, CDPH amended its order to recommend masks in indoor settings for all persons, even the fully-vaccinated.  With the most recent of Cal/OSHA's continuing restrictions, California employers may refer to the below resources as they recall employees from furlough and bring employees back to the workplace after working from home.

While California is lifting physical distancing, capacity limits, and relaxing mask guidance outside of employment as announced on June 14, 2021, the highly contagious Delta variant and increasing COVID-19 positivity rates have caused new restrictions.

On July 26, 2021, Governor Newsom ordered California state workers, healthcare workers, and other employees who work in “high-risk congregate settings” to get vaccinated or submit weekly COVID-19 testing and wear masks.  Governor Newsom’s order covers employees of hospitals, nursing homes, dental and physician offices, and other healthcare settings.  Healthcare facilities must comply with these requirements by August 23, 2021.  Similarly, employees of state agencies will be required to comply by August 2, 2021.  California is encouraging local governments and private employers to adopt similar mandates.

On August 5, the California Department of Public Health ordered all healthcare workers to get fully vaccinated against COVID-19 by September 30, 2021 except in some cases of accommodations for medical reasons or sincerely held religious beliefs.

Vaccine

Q.  The CDC guidance seems to suggest that vaccinated employees need not wear masks in the workplace, does this apply in California? 

A.  No.  However, Cal/OSHA's June 17, 2021 amendment to the November 2020 Emergency Regulations are more in line with CDC guidance.  

Q.  May an employer require employees to be vaccinated against COVID-19?

A.  Yes, as long as the employer is able to make certain accommodations. On December 16, 2020, the EEOC published extensive guidance related to the COVID-19 vaccine and the workplace, including guidance that in a workplace where no accommodation is possible for employees who will not be vaccinated, then it would be lawful to exclude such employees from the workplace.  

California’s DFEH’s recent guidance provides that an employer may require  employees to receive an FDA approved vaccination against COVID-19 infection so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

Q.  How should an employer evaluate whether or not to provide accommodation for employees who assert that they cannot or will not take the vaccine and need accommodation?

A.  Consult with counsel.  While the EEOC guidance is clear that certain employers may exclude such persons from the workplace, excluding such employees from the workplace will, in all likelihood, increase litigation exposure:  “Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.  A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.  If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.” 

Q.  If an employee claims that s/he needs a reasonable accommodation to avoid a mandatory workplace COVID-19 vaccine, what should an employer do?

A.  Consult with counsel about participating in the interactive process to determine whether a reasonable accommodation is available.

Q.  Does an employee’s concern that a vaccine is not safe to require a reasonable accommodation?

A.  Probably not.  Employers are only required to accommodate a disability or a sincerely-held religious belief for not being vaccinated with an FDA-approved vaccine.  If an employer is confronted with this issue, it is best to consult with counsel.

Q.  May an employer require employees to submit proof of COVID-19 vaccination?

A.  Yes, according to DFEH guidance.  Proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination. Because COVID-19 vaccine documentation could include other medical information, employers may wish to instruct their employees or applicants to omit any medical information from the documentation. Any record of employee or applicant vaccination must be maintained as a confidential medical record.  Further, an employer should ensure that they are in compliance with CCPA privacy notice requirements.

Q.  My employees are all vaccinated, do they still have to wear facial coverings and follow other social distancing protocols?

A.  Yes.  On May 5, 2021, Cal/OSHA reiterated to employers that even with vaccinated employees, all prevention measures must continue.  On January 29, 2021, Fed/OSHA’s most recent guidance recommends, based on CDC guidance, not to distinguish safety protocols for workers who are vaccinated from those where are not vaccinated.  Fed/OSHA advises that vaccinated workers should continue to follow protective measures, such as wearing facial coverings and remaining physically distant, because there is not sufficient evidence that vaccines prevents transmission of COVID-19 from person-to-person.  Cal/OSHA guidance, too, confirms that workplace distancing and mask requirements should continue in almost all employment contexts.

Issues Related to Return to Work

Q.  What does the CDC recommend for the workplace?

A.  On July 27, 2021, the CDC updated its previous guidance for fully-vaccinated persons.  The CDC recommends that fully-vaccinated persons continue to wear masks indoors in public in an area of substantial or high transmission, currently covering over 60% of the United States.  Otherwise, the CDC indcates that fully-vaccinated persons may stop wearing masks and social distancing in most settings.  However, California employers should note that the new CDC guidance has an exception that largely swallows the guidance because masks and distancing should be maintained “where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”  Until such time as the California Department of Public Health, Cal/OSHA and local authorities update their guidance on mask use and physical distancing in the workplace, California’s employers should continue to enforce existing standards to stave off claims of workplace safety violations.  For the unvaccinated and in settings requiring masks, such as airplanes and buses, the CDC recommends that the use of surgical masks, disposable face masks that fit snugly, made with tightly woven breathable fabric, with two or three layers or inner filter pockets.  Clear masks may also be important when interacting with the hearing impaired, students learning a new language, and persons with diabetes. See:  https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-guidance.html.  The general public should not use surgical masks or N-95 respirators so that these critical supplies are available to health care workers and first responders.  Likewise, face shields are not a substitute for masks.

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

A.  Effective June 15, 2021, CDPH updated its guidance concerning face coverings and quarantine requirements for “fully vaccinated” people outside of the workplace.  CDPH Masking Order.

Masks are not required of vaccinated persons except where masks are required of all persons.

  • On public transportation;
  • Indoors in K-12 schools, childcare and youth settings;
  • Healthcare settings and long term-care facilities;
  • Correctional facilities; and
  • Homeless shelters and cooling centers.

Masks ARE required for unvaccinated persons in indoor public settings and businesses. 

CDPH also provides regulations for what are called "Mega Events".

  • For indoor events with 5,000 or more people, attendees must confirm proof of vaccination or negative COVID-19 status in order to attend. 
  • For outdoor events with 10,000 or more people, it is recommended that attendees confirm proof of vaccination or negative COVID-19 status in order to attend. 

Here are the rules most applicable to most employers:

  • Fully-vaccinated employees, those at least two weeks after their final vaccine dose of an authorized vaccine, who provide proof of their vaccination status, are allowed to work without a face mask in most workplaces.
  • Unvaccinated employees must still wear face masks in indoor settings.
  • Face masks are not required for vaccinated and unvaccinated workers while outdoors.
  • Employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others, upon request.

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. 

The DFEH agrees that under the FEHA, an employer may mandate a medical examination when it is “job-related and consistent with business necessity.” Applying this standard in light of present guidance from the CDC, and consistent with guidance from the Equal Employment Opportunity Commission, employers may require employees to submit to viral testing but not antibody testing before permitting employees to enter the workplace.  

Employers mandating 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 be aware 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, which effective January 1, 2021 will apply to all employers with five or more employees.

Under ARPA, FFCRA leave may be available for employers who decide to provide expanded FFCRA leave through September 30, 2021.

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.  

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

A.  Yes.  Train your workforce as to the new IIPP, encourage vaccination against COVID-19, maintain 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.

Q.  What does the CDC recommend for the workplace?

A.  On May 13, 2021, for fully vaccinated persons, the CDC guidance provides that such persons may stop wearing masks and social distancing in most settings.  However, California employers should note that the new CDC guidance has an exception that largely swallows the guidance because masks and distancing should be maintained “where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”  Until such time as the California Department of Public Health, Cal/OSHA and local authorities update their guidance on mask use and physical distancing in the workplace, California’s employers should continue to enforce existing standards to stave off claims of workplace safety violations.  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, and, if possible, open windows to the outside, 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).

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, especially given the COVID-19 Emergency Regulations.  So, together with your employees or their authorized representative, proactively take steps to protect against the risk of COVID-19 in the workplace to

  • Develop and implement screening processes and responding to employees with COVID-19 symptoms
  • Remain updated on state and local guidance and orders on hazard prevention, including industry-specific guidance found on Cal/OSHA’s website or at Covid19.ca.gov;
  • Review and, if necessary, adjust existing practices for controlling COVID-19
  • Conduct a site-specific evaluation of where COVID-19 transmission could occur, including places where employees and any other persons congregate or interact with each other or members of the public
  • Create a written procedure to immediately address COVID+ cases
  • Conduct periodic inspections to ensure compliance and check for new hazards
  • Implement procedures to promptly correct any identified hazards

Q.  What does Cal/OSHA require for physical distancing and facial covering?

A.  Cal/OSHA's revised ETS is similar to the CDHP's orders and eliminate physical distancing and barrier requirements regardless of vaccinations status.  There are several exceptions that may apply:

  • Employers may implement additional protective measures, including the use of physical distancing and barriers.
  • Employers are under an ongoing requirement to assess workplace hazards and implement controls to prevent transmission of disease.  There may be circumstances in which employers determine that physical distancing is necessary in their workplace.
  • During an outbreak (3 or more employees in an exposed group), employers are required to evaluate whether physical distancing or barriers are necessary to control the transmission of COVID-19.
  • Physical distancing and barriers must be used in a major outbreak (20 or more employees in an exposed group) for all employees, regardless of vaccination status.
  • Restrictions required by local health orders.

Q.  What facial covering requirements does Cal/OSHA require?

  • Fully-vaccinated employees need NOT wear face coverings indoors, unless local health orders require masks.  In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.
    • Employees in certain indoor settings must wear a face covering regardless of vaccination status if required by CDPH order.  As of June 15, those indoor settings where CDPH requires face coverings include public transit, K-12 educational facilitites, health care and long-term care settings, correctional and detention facilitites, and shelters (homeless or emergency shelters and cooling centers).
  • Unvaccinated employees must wear face coverings indoors and in vehicles.  Except:
    • When alone in a room or vehicle
    • When easting and drinking
    • When an accommodation is required
    • When job duties make a face covering infeasible or create a hazard
  • While there are no longer face covering requirements outdoors (except during outbreaks), regardless of vaccination status, though workers must be trained on CDPH recommendations for outdoor use of face coverings.
  • Employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others, upon request.
  • Employers may not retaliate against employees for wearing face coverings.

Q.  Are there any engineering controls that Cal/OSHA suggests or requires an employer to implement?

A.  Yes, Cal/OSHA identifies engineering controls such as plexiglass separators where physical distancing is not possible, maximizing the amount of outside air to the extent feasible, unless there is poor outside air quality (an AQI of 100 or higher for any pollutant) or some other hazard to employees such as excessive heat or cold.

Q.  Are there any administrative controls that Cal/OSHA suggests or requires an employer to implement?

A.  Yes, Cal/OSHA identifies administrative controls such as effective cleaning procedures of commonly for touched surfaces, such as doorknobs, elevator buttons, equipment, tools, handrails, handles, controls, bathroom surfaces, and steering wheels; notifying employees and employees’ authorized representatives of cleaning and disinfection protocols and planned frequency and scope of cleaning; minimizing sharing of tools, equipment and vehicles; disinfecting between usage of any shared tools, equipment and vehicles; providing, encouraging and allowing time for frequent hand washing, and hand sanitizer.

Q.  Is there any personal protective equipment (PPE) that Cal/OSHA suggests or requires an employer to implement?

A.  Yes, Cal/OSHA requires employers to evaluate the need for PPE, including but not limited to gloves, eye protection and respiratory protection as required by Cal/OSHA standards and to provide eye and respiratory protection for employees exposed to procedures that aerosolize saliva or other potentially infectious materials, such as some dental procedures and to prohibit the sharing of PPE. 

Considerations Before Re-Opening

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

A.  Yes.  Even though CDC guidance provides that vaccinated persons need not wear masks in most settings, this guidance does not supersede all applicable state and local orders governing business closures to ensure that you are allowed to re-open, bring back employees, as well as restrictions on business hours, density, occupancy and more.  These orders change with frequency and, often without notice.  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 or health orders mandate reduced density.  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 ARPA/FFCRA, employees provided with leave through September 30, 2021 should not be terminated due to school closures.  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 type of policies and procedures should an employer consider to mitigate COVID-19 risks?

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

  • Encouraging employees to get vaccinated
  • 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
  • Identify a professional cleaning service that utilizes cleaning agents approved by the EPA against coronavirus for deep cleansing
  • 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
  • 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 shifts
  • 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 request COVID-19 testing to protect against COVID-19 in the workplace;
  • 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 ensure compliance with CalOSHA Emergency Regulations, give notice to workers' compensation carriers and prepare to implement those plans (Also see Section on OSHA/Workplace Safety/Workers' Compensation):

  • 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+ employee to identify any other employees with whom s/he had contact during the prior 14 days, the length of contact and the type of contact;
  • 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, COVID-19 related benefits and protections, and disinfection and safety measures that will be taken at the worksite in response to the potential exposure.  DO NOT reveal the identity of the co-worker;
  • If the COVID-19 diagnosed employee worked in close contact with specific other employees, close contacts might need to be quarantined and, if possible, work remotely, unless the close contact is fully-vaccinated and asymptomatic;
  • Following a close contact exposure at work, fully-vaccinated workers do not need to quarantine if asymptomatic.  However, if a fully-vaccinated worker is experiencing COVID-19 symptoms, the employee should be tested.

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 a timing issue?

A.  Yes, the California Attorney General commenced 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.  Do I qualify as 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. 

In addition, check with your local government to determine whether other small business loans and grants are available to you. 

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. 

The Coronavirus Response and Relief Supplemental Appropriations Act of 2021 (CRRSA)

Q.  Other than direct funds to individuals, does the CRRSA provide any benefits for employers?

A.  The CRRSA is intended to provide assistance to small businesses and preserve jobs for American industries.

Q.  What does CRRSA provide for small businesses?

A.  A paycheck protection program to help small businesses maintain payroll, hire back employees, and cover overhead, as well as provide access to capital for minority, underserved, veteran and women-owned businesses.

Federal Guidance Regarding Eligibility For Unemployment Insurance

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 childcare 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.

AMERICAN RESCUE PLAN ACT OF 2021 - FAMILIES FIRST CORONAVIRUS ACT

General Information

Q.  Is the FFCRA still in effect?

A.  The American Rescue Plan Act of 2021 (ARPA) expanded and extended the FFCRA to provide that covered employers may voluntarily provide Emergency Paid Sick Leave (EPSL) and expanded FMLA leave and receive a tax credit through September 30, 2021.

Q.  Which employers does ARPA/FFCRA apply to?

A.  Employers with fewer than 500 employees nationwide may participate.   

Q.  Are there changes to EPSL leave?

A.  Yes.  If an employer voluntarily provides leave, leave must be used for the same purposes and subject to the same conditions as originally outlined in the original FFCRA, plus under ARPA employees may also seek EPSL for getting vaccinated and any time to recover from vaccine side-effects.  Please consult with counsel and/or your tax experts before acting. 

Q.  Are federal tax credits available under ARPA for paying employees who get vaccinated?

A.  Yes.  The tax credits are available for businesses with fewer than 500 employees for up to 80 hours in paid time off, capped at $511 per day and $5,110 in the aggregate, for an employee to get their vaccine or recover from any side effects.  Eligible businesses can claim the credit quarterly through September 30, 2021.  Self-employed individuals may claim comparable tax credits on their individual Form 1040, U.S. Individual Income Tax Return.

Q.  Has the IRS provided any additional guidance?

A.  Yes.  The IRS updated its FAQs to provide guidance as recently as July 29, 2021. 

Q.  What about employees who already used up their paid leave under FFCRA in 2020?

A.  Employees provided with ARPA FFCRA leave will receive a fresh 10-day EPSL bank on April 1, 2021.

Q.  Are there changes to expanded FMLA leave?

A.  Yes, when employees need leave for COVID-impacted schools or childcare, ARPA no longer requires a two-week unpaid period before expanded FMLA is paid.  So, employees may now receive up to twelve weeks paid at 2/3 the employee’s regular rate, up to $200/day and a maximum of $12,000.  Employers may not discriminate on the basis of seniority, favor highly compensated employees or full-time employees to receive the tax benefits.

Q.  Is there any more information about ARPA/FFCRA from the Department of Labor?

A.  The DOL has not, yet, provided any guidance.  However, its Q&A webpage dedicated to FFCRA questions should be updated soon.

Q.  How does ARPA impact COBRA? 

A.  ARPA provides certain employees and former with COBRA Premium Assistance for six months from April 1, 2021 to September 30, 2021 and requires revised COBRA notices.

Q.  Which employees are eligible for Premium Assistance?

A.  Many employees that are involuntarily terminated or have their hours sufficiently reduced to trigger COBRA coverage.  This includes employees terminated in the 18 months prior to April 1, 2021, even if they did not previously elect COBRA coverage or elected COBRA coverage but discontinued it.

Q.  Are there other limits on eligibility?

A.  Employees that are eligible for coverage under another group health plan, including that of a spouse’s employer will disqualify an employee from eligibility. 

Q.  Who pays for the Premium Assistance?

A.  Employers or plans are to pay for the Premium Subsidy, however, which is eligible for reimbursement through a credit against payroll taxes. 

Q.  Is there any more information from the Department of Labor?

A.  On April 7, 2021, the DOL created a webpage dedicated to providing guidance, including a FAQ.  

Q.  When must notice be given and what notices are now required?

A.  Employers have until May 31, 2021 to provide notices of the opportunity for election of subsidized coverage to employees and individuals have sixty days after the date of the notice to elect subsidized coverage.  DOL provides a model notice for employers.  

Q.  What is the downside to non-compliance?

A.  The DOL asserts that it may impose an excise tax up to $100 per qualified beneficiary (capped at $200/family) for each day an employer is in violation of the ARPA/COBRA rules.  Employers should ensure that their plan administrators are working to prepare timely compliance notices.

Healthcare Industry-Specific Information

Q. Does California have special orders to attempt to contain COVID-19 that pertain to healthcare workers?

A.  Yes.  On July 26, 2021, Governor Newsom ordered California state workers, healthcare workers and other employees who work in “high-risk congregate settings” to get vaccinated or submit to weekly COVID-19 testing and wear masks.  Governor Newsom’s order covers employees of hospitals, nursing homes, dental and physician offices, and other healthcare settings.  Healthcare facilities must comply with these requirements by August 23, 2021.

On August 5, the California Department of Public Health ordered all healthcare workers to get fully vaccinated against COVID-19 by September 30, 2021 except in some cases of accommodations for medical reasons or sincerely held religious beliefs.

The order broadly applies to any "Health Care Facilities," including:

  • General Acute Care Hospials 
  • Skilled Nursing Facilities (including Subacute Facilities)
  • Intermediate Care Facilities 
  • Acute Psychiatric Hospitals
  • Adult Day Health Care Centers
  • Program of All-Inclusive Care for the Elderly (PACE) and PACE Centers
  • Ambulatory Surgery Centers
  • Chemical Dependency Recovery Hospitals
  • Clinics & Doctor Offices (including behavioral health, surgical)
  • Congregate Living Health Facilities
  • Dialysis Centers
  • Hospice Facilities
  • Pediatric Day Health and Respite Care Facilities
  • Residential Substance Use Treatment and Mental Health Treatment Facilities

The order applies to all individuals, paid and unpaid, who work in any indoor setting where (1) care is provided to patients, or (2) patients have access for any purpose and expressly includes contracted persons who not employed directly by the health care facility and those not involved in patient care, but who could be exposed to infectious agents (e.g., clerical, volunteers, laundry, security, facilities management, food service, administrative, etc…).

Exemptions may be requested through a signed declination form stating (1) the workers is declining vaccination based on religious beliefs or (2) the worker is excused from receiving the vaccine for a qualifying medical reason. If seeking a medical waiver, the worker must provide a signed statement from a physician, nurse practitioner or “other licensed medical professional practicing under the license of a physician” stating that s/he qualifies for the exemption and with the probable duration of the worker’s inability to receive the vaccine. Any health care facility employer should not inquire any further about the medical reason. Qualified exempt individuals must test for COVID-19 twice weekly if they work in an acute health care or long-term care setting and once weekly in all other settings. They must also wear a surgical mask or higher-level respirator, such as an N95 mask, at all times while in the facility. The healthcare facility must maintain records of vaccination (name, date, vaccine type and date of administration) or exemption status and keep copies of unvaccinated worker declination forms. Records of any regular testing required for exempt individuals must also be maintained. All vaccination and testing information should be treated as a confidential medical record and should be stored separately from the employee’s personnel file.

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

A.  The Governor is terminating the executive orders that put into place the Stay Home Order and the Blueprint for a Safer Economy.  He is also phasing out the vast majority of executive actions put in place since March 2020 as part of the pandemic response, leaving in place a subset of provisions.  In addition, California Dept. of Public Health (CDPH) issued a new public health order effective June 15, 2021, decreasing restrictions on the public, new guidance on masks and ending the travel advisory. 

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

A.  Effective June 15, 2021, CDPH updated its guidance concerning face coverings and quarantine requirements for "fully vaccinated" people outside of the workplace.  CDPH Masking Order

Masks are not required of vaccinated persons except where masks are required of all persons.

  • On public transportation;
  • Indoors in K-12 schools, childcare and youth settings;
  • Healthcare settings and long term-care facilities;
  • Correctional facilities;
  • Homeless shelters and cooling centers.

Masks ARE required for unvaccinated persons in indoor public settings and businesses. 

CDPH also provides regulations for what are called "Mega Events".

  • For indoor events with 5,000 or more people, attendees must confirm proof of vaccination or negative COVID-19 status in order to attend. 
  • For outdoor events with 10,000 or more people, it is recommended that attendees confirm proof of vaccination or negative COVID-19 status in order to attend. 

In settings where masks are required only for unvaccinated individuals, businesses, venue operators or hosts may choose to:

  • Provide information to all patrons, guests and attendees regarding vaccination requirements and allow vaccinated individuals to self-attest that they are in compliance prior to entry.  
  • Implement vaccine verification to determine whether individuals are required to wear a mask. 
  • Require all patrons to wear masks. 

No persons can be prevented from wearing a mask as a condition of participation in an activity or entry into a business. 

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.

Employers need to provide masks or reimburse the cost if employees will have to provide them to wear them at work.  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.

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, safety, 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, overtime, Workers' Compensation and Cal/OSHA 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 homes, 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 or personal email accounts 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.  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 and 2021 Supplemental Paid Sick Leave

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 work remotely due to COVID-19-related illness or quarantine?

A.  Yes.  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. 

Q.  Do I have to pay employees who are on leave due to COVID-19?

A.  Yes.  On March 29, 2021, California’s newest COVID-19-related legislation requires all employers with 25 or more employees to provide California employees up to 80 hours of COVID-19 paid sick leave (“2021 COVID-19 Supplemental Paid Sick Leave”), in addition to other mandated paid sick leave, to employees who are not able to work or telework due to COVID-19 impact.

Q.  Has California published any guidance on 2021 COVID-19 Supplemental Paid Sick Leave?

A.  Yes.  In April 2021, the Labor Commissioner through the Department of Industrial Relations published an FAQ to provide guidance related to 2021 COVID-19 Supplemental Paid Sick Leave. 

Q.  How is the 25+ employee threshold determined?

A.  The employee threshold is measured based on part-time, full-time, season and out-of-state employees.  However, only employees located in the State of California are eligible for 2021 COVID-19 Supplemental Paid Sick Leave.

Q.  Is there a certain period of time that an employee must work for me before being eligible for 2021 COVID-19 Supplemental Paid Sick Leave?

A.  No, upon a covered employer hiring an employee, that employee is eligible for 2021 COVID-19 Supplemental Paid Sick Leave.

Q.  What circumstances qualify for 2021 COVID-19 Supplemental Paid Sick Leave?

A.  Part-time and full-time employees qualify for 2021 COVID-19 Supplemental Paid Sick Leave if they are not able to work or work remotely because they need to (1) care for themselves due to quarantine, isolation, COVID-19 symptoms or they are seeking a medical diagnosis, (2) care for family members subject to quarantine, isolation or for a child due to COVID-19 school or childcare closures, or (3) attend vaccine appointments or encounter vaccine-related symptoms. Full-time employees will qualify for up to 80 hours of 2021 COVID-19 Supplemental Paid Sick Leave. General “stay at home orders” do not qualify for COVID-19 pay.

Q.  When is 2021 COVID-19 Supplemental Paid Sick Leave in effect?

A.  This law goes into effect on March 29, 2021 and will expire on September 30, 2021.  However, employees are entitled to 2021 COVID-19 Supplemental Paid Sick Leave for qualifying reasons retroactively to January 1, 2021.  If the law expires while a covered employee is taking leave, the employee may finish taking their 2021 COVID-19 Supplemental Paid Sick.

Q.  What other requirements are there?

A. Employers have a mandatory poster that needs to be circulated electronically and/or posted for employees.  In addition, to pay requirements, wage statements will need to be adapted to comply with the new law.

Q.  Do I have to pay for an employee to get vaccinated, even if I don’t require it?

A.  Probably.  If a covered employee takes time off of work to get vaccinated, the employee appears to be eligible for 2021 COVID-19 Supplemental Paid Sick Leave for the time required to get vaccinated.  And, many employers will qualify for federal tax credits if they have fewer than 500 employees for up to 80 hours in paid time off, capped at $511 per day and $5,110 in the aggregate, for each employee to get vaccinated or recover from any side effects from the vaccine.  Eligible businesses can claim the credit quarterly through September 30, 2021.  Self-employed individuals may claim comparable tax credits on their individual Form 1040, U.S. Individual Income Tax Return.

Q.  How do I calculate 2021 COVID-19 Supplemental Paid Sick Leave?

A.  Carefully.  The compensation rate for nonexempt employees is the highest of the employee’s regular rate of pay for the pay period in which the supplemental paid sick leave is taken, the state minimum wage, or the local minimum wage to which the covered employee is entitled, up to $511/day or a total of $5,110. Calculations for part-time employees are even more complicated.  Consult with counsel to ensure that calculations are correctly made. 

Q.  Can employees be required to seek disability pay before 2021 COVID-19 Supplemental Paid Sick Leave?

A.  No.  Unlike Cal/OSHA’s Emergency Regulations, employers cannot require employees to use SDI to set off or in lieu of 2021 COVID-19 Supplemental Paid Sick Leave.  A covered employee may apply, however, for SDI after taking the 2021 COVID-19 Supplemental Paid Sick Leave to which the covered employee is entitled.

Q.  Can an employer require an employee to use the employee’s PTO or sick leave bank before 2021 COVID-19 Supplemental Paid Sick Leave?

A.  No.

Q.  Does taking a family member to a vaccine appointment qualify for 2021 COVID-19 Supplemental Paid Sick Leave?

A.  No.

Q.  Does the 2021 COVID-19 Supplemental Paid Sick Leave mesh with Exclusion Pay under the Cal/OSHA Emergency Orders?

A.  Yes.  When an employee is excluded by their employer and otherwise entitled to exclusion pay (Exclusion Pay FAQ link), an employer may require the use of 2021 COVID-19 Supplemental Paid Sick Leave before providing exclusion pay.

Q.  Is there any paystub requirement related to 2021 COVID-19 Supplemental Paid Sick Leave?

Yes.  Labor Code section (246(i)) appears to require written notice of the amount of available 2021 COVID-19 Supplemental Paid Sick Leave for use on either the employee’s itemized wage statement described in Labor Code section 226 or in a separate writing provided on the designated pay date with the employee’s payment of wages. Because it is different from mandatory paid sick leave and expires in September 2021, consider a separate wage statement line item for 2021 COVID-19 Supplemental Paid Sick Leave from an employee’s regular paid sick leave bank.

Q.  If leave is for a COVID-19-related reason, does the employer deduct it automatically or does the employee need to request it come from this bank?

A.  An employer should only deduct from an employee’s 2021 COVID-19 Supplemental Paid Sick Leave bank upon request from the employee. A covered employee may determine how many hours of 2021 COVID-19 Supplemental Paid Sick Leave to use, and the employer must make the leave available for immediate use, upon the covered employee’s oral or written request.

Q.  Is there a limit on how many occasions an employee can use 2021 COVID-19 Supplemental Paid Sick Leave?

A.  No.  The only limit is the total quantity of hours.

Q.  How will 2021 COVID-19 Supplemental Paid Sick Leave be enforced?

A.  The Labor Commissioner’s office is charged with enforcing the 2021 COVID-19 Supplemental Paid Sick Leave for covered employees who are denied 2021 COVID-19 Supplemental Paid Sick Leave. Employees are also protected against retaliation or discrimination for requesting leave. PAGA likely applies to pay stub issues, and an employer may be subject to fines and penalties for noncompliance.

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 a temperature check 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, creating records of employees' temperature checks may implicate additional CCPA (California Consumer Privacy Act) compliance in California, non-contact thermometers should be used and time spent should be compensated.

Q.  Can we ask other health-related questions of employees before they start work?

A.  Yes.  Employers that screen employees for COVID-19 at the workplace may ask health-related questions, however, such information should be treated as confidential medical records, and maintaining records of employees’ answers implicates CCPA notice requirements.

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 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 whether COVID-19 is a disability is a fact based determination in each case.

Q.  If my employee seeks 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 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.

City Issues

Los Angeles County and City

Q.  Does Los Angeles County have any special orders?

A.  Yes, on August 16, 2021 (effective August 19, 2021), LA County Health Department modified its July 16, 2021 order that rejected complete alignment with the CDPH Order of June 11, 2021 and Cal/OSHA ETS. Businesses need not post protocols or submit plans for opening. And, except for youth, healthcare and high-risk congregate settings, prior sector specific guidance is no longer required. The August 16 modification requires masking at all Outdoor Mega-Events. LA County reminds employers that its Inspectors are visiting businesses across the county to ensure compliance with Health Officer Orders and masking requirements.

Q.  Which employers should follow the LA County Health Department orders?

A.  All employers in Los Angeles County, except those located in Pasadena and Long Beach.

Q.  How does this order impact my workplace?

A.  With few exceptions, all employees working indoors in a business that is open to the public must wear masks, regardless of vaccination status.  In addition, all employees working at Outdoor Mega-Events must wear masks. An Outdoor Mega-Event is an event with 10,000 or more attendees.

Q.  Tell me about the exceptions.

A.  The only express exemption to mask wearing in an indoor workplace applies to employees who perform certain tasks that cannot be performed while wearing a mask, for the period of time in which such tasks are to be performed.  And, such employees must be tested for COVID-19 twice per week unless they provide proof of being fully vaccinated.

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 was revised and updated on June 24, 2021.  This order shall remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period. 

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

A.  The COVID-19 paid sick leave Order applies to most 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 for 60 days.

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.
  5. The employee takes time off work to receive a vaccine, including travel time to and from the appointment and to recover from any symptoms related to the COVID-19 vaccine.

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 last 60 days of employment.  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 last 60 days of employment, 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 is entitled to 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. 

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.

San Francisco

Q. What is the latest Order from the San Francisco Health Officer?

A.  On August 12, 2021, the SF Health Officer updated its order to require wearing a “well fitted mask” in most indoor public settings (no scarves, bandanas, etc.).  In addition, by October 13, 2021, restaurants, bars, theaters, entertainment businesses, gyms, yoga and dance studios, and fitness establishments must  require employees to be fully vaccinated, subject to accmommodation laws.  

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

A.  The San Francisco Board of Supervisors first enacted the Public Health Emergency Leave Ordinance (PHELO) on April 17, 2020 and has continued to extend it for a subsequent period of approximately 60 days for each extension.  The mayor has approved each of the prior extensions.  However, the PHELO expired on April 12, 2021 and it was not extended by the SF Board of Supervisors.  Therefore, San Francisco employers must comply with the state COVID sick leave requirements. 

Q.  Does San Francisco have a Right To Reemployment Ordinance Following Layoff Due To Covid-19 Pandemic?

A.  Yes, it is also called the San Francisco Return to Work Ordinance.  The ordinance requires certain employers operating in San Francisco to offer reemployment to eligible employees laid off as a result of the COVID-19 pandemic.

Q.  When did the ordinance become effective?

A. The ordinance was passed on April 6, 2021 and became effective on May 16, 2021.  It covers all Eligible Workers who were impacted by layoffs due to COVID-19 that took place after February 25, 2020.  It will remain in effect either until May 16, 2022 or the termination of the February 25, 2020 state of emergency, whichever is latest.

Q.  Who is a covered employer?

A.  Covered employers include restaurants, hotels, grocery stores, hospitality establishment or large food service operations, formula retail and any person who directly or indirectly, on or after February 25, 2020, employed or employs 100 or more employees worldwide, as of the earliest date that an employer Separated or Separates one or more Eligible Worker that resulted or results in a Layoff. Employer” does not under any circumstances include any employer that provided or provides services that qualify as healthcare operations.

Q.  Who is a covered employee or eligible worker?

A.  “Eligible Workers” are those who were employed at a worksite located in San Francisco for at least 90 days prior to receiving a written layoff notice and who were laid off due to the COVID-19 emergency on or after February 25, 2020.  This includes full-time, part-time, and temporary workers who meet the conditions listed above.

Q.  As an employer, do I have to report information to any agency?

A.  Employers with 100 or more employees (regardless of location) are required to report the following to the San Francisco Office of Economic & Workforce Development (OEWD):

  • An employer shall provide written notice to OEWD regarding any layoff (10 or more eligible employees) within a 30-day period within 30 days of the when the layoff begins.  The written notice shall include: the total number of eligible workers affected by the layoff; the job classification at the time of separation for each eligible worker; the original hire date for each eligible worker; and the date of separation from employment for each eligible worker.
  • For layoffs that occurred on or after February 25, 2020 that the employer has not yet notified the City, the employer should provide the same written notice to OEWD by June 16, 2021.
  • An Employer shall, without disclosing the identities of any individual job candidates, notify the OEWD in writing of all offers of reemployment made under this ordinance, in addition to all acceptances and rejections by Eligible Workers of such offers or reemployment.

Q.  What does the ordinance require employers to do?

A.  Employers must provide written notice of the layoff to the Eligible Worker at or before the time when the layoff becomes effective.  The written notice shall include: a notice of the layoff and the layoff’s effective date; a summary of the right to reemployment as defined by this ordinance; and a telephone number to the OEWD hotline: (415) 701- 4817, which Eligible Workers may call to receive information regarding this ordinance.

If an employer implemented a layoff on or after February 25, 2020 and prior to when this ordinance goes into effect, the employer will have 30 days (until June 16, 2021) to provide written notice along with the information provided above to former employees who are Eligible Workers if they had not already done so pursuant to Section 5 of Ordinance No. 104-20 (Right to Reemployment Emergency Ordinance).

An employer must reasonably accommodate eligible workers experiencing a family care hardship.  Reasonably accommodate includes modifying an Eligible Worker’s schedule, delaying the start date or reemployment, modifying the number of hours to be worked, or permitting telework, to the extent operationally feasible.

Q.  As an employer, do I have to retain records of layoffs?

A.  An employer must retain the following records regarding each Eligible Worker it Separated due to a Layoff for at least two years: full legal name; job classification at the time of Separation; date of hire; last known address of residence; last known email address; last known telephone number; and a copy of the written notice regarding the Layoff provided to the Eligible Worker.

Q.  When is an employer required to make an offer of reemployment to a previously laid-off employee?

A.  If an employer seeks to rehire for the same, or substantially similar position (comparable job duties, pay, benefits and working conditions), or any position that the laid-off Eligible Worker had with the employer at the time of layoff or in the 12 months preceding the layoff, then the employer must first offer the position to that laid-off Eligible Worker.

If the employer is offering reemployment to the same job classification, the employer must make a reemployment offer in order of seniority with that employer based on the earliest hire date.

If the most senior Eligible Worker who formerly held the same position declines the offer of reemployment, an Employer shall make subsequent offers of reemployment to any other Eligible Workers who previously held the same position or any substantially similar position in order of seniority.  If all Eligible Workers decline the offer of reemployment, then an Employer may make such offer to any person.

Once a reemployment offer is made, the offer shall remain open for at least two business days following delivery, although the Employer may extend the acceptance period.  Eligible Workers must notify the employer in writing if they wish to accept the position. If the worker fails to respond within two business days, it will be considered a rejection of the offer.

Q.  Are there any exceptions to the reemployment offer requirement?

  • An employer can withhold a reemployment offer for the following reasons:
  • Misconduct – If the employer learns after the lay-off that the Eligible Worker engaged in any act of dishonesty, violation of the law, violation of a policy or rule of the employer or other misconduct that occurred while the worker was employed.
  • Severance Agreement – If the employer and worker executed a severance agreement due to a layoff before July 3, 2020.
  • Rehiring – If, prior to July 3, 2020 or after March 2, 2021 and prior to May 16, 2021, the Employer hired a person other than the Eligible Worker to the Eligible Worker’s former position or to a substantially similar position.

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, and that will remain in effect through at least June 30, 2021.

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.


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.  Maybe.  CDC guidance, effective May 13, 2021, provides that fully-vaccinated travelers do not need to self-quarantine in the United States following international travel.

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.

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. Common office areas, bathrooms, offices and shared electronic equipment should be cleaned and disinfected routinely.

According to the CDC, fully vaccinated people with no COVID-like symptoms do not need to quarantine, be restricted from work, or be tested following an exposure to someone with suspected or confirmed COVID-19, as their risk of infection is low.  However, California and local rules may require other actions.  And, fully vaccinated persons should monitor for symptoms of COVID-19 for 14 days following an exposure.

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 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 quarantined 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.  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.

On May 13, 2021, the CDC guidelines provide that fully vaccinated people with no COVID-like symptoms do not need to quarantine, be restricted from work, or be tested following an exposure to someone with suspected or confirmed COVID-19, as their risk of infection is low.  However, California and local rules may require other actions.  And, fully vaccinated persons should monitor for symptoms of COVID-19 for 14 days following an exposure.

While the CDC continues to recommend a 14-day quarantine for Close Contacts, on December 8, 2020, it recognized that in conjunction with local public health authority directives the quarantine period for Close Contacts may be reduced to:

  • 7 days after exposure and negative test on day 5 or later
  • 10 days after exposure without test

However, the 10-day quarantine period applies only to the extent that a local health order does not contain a more restrictive quarantine or isolation period.  Therefore, if your workplace is within a county that has a longer quarantine period, the local health order will control.  Any exposed employees allowed to return to work earlier than 14 days must:

  • Adhere strictly to all recommended non-pharmaceutical interventions, including wearing face coverings at all times, distancing least 6 feet from others through Day 14.
  • Use surgical face masks at all times during work for those returning after Day 7 and continue to use face coverings when outside the home through Day 14 after last exposure.
  • Self-monitor for COVID-19 symptoms through Day 14 and if symptoms occur, immediately self-isolate and contact their local public health department or healthcare provider and seek testing. 

Q.  Is there any difference for fully vaccinated employees?

A.  Yes. In non-healthcare settings, the CDC guidance informs employers that fully vaccinated people exposed to COVID-19 with no COVID-like symptoms do not need to quarantine, be restricted from work, or be tested following exposure to someone with suspected or confirmed COVID-19, as their risk of infection is low.  These employees should be directed to monitor for COVID-19 symptoms and, if they experience symptoms, to isolate themselves and get tested.  Testing continues to be recommended for fully vaccinated employees who are who work in congregate settings, high-density workplaces, or dormitory-like settings.  Cal/OSHA confirmed this guidance for California employers on May 5, 2021.

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.

Cal/OSHA/WORKPLACE SAFETY/WORKERS' COMPENSATION

COVID-19 Emergency Regulations

Q.  I am a small employer, do Cal/OSHA’s COVID-19 emergency regulations apply to my business?

A.  Probably.  The Emergency Regulations apply to all places of employment in California with the exception of (1) employment with only one employee who does not have contact with other persons; (2) employees working from home; and (3) an exception for hospitals and other healthcare-related facilities covered by the Aerosol Transmissible Diseases (ATD) Standard.

Q.  When do the emergency regulations take effect?

A.  The emergency regulations originally took effect on November 30, 2020 and were updated on June 17, 2021.

Q.  Has Cal/OSHA issued any guidance on the emergency regulations ("ERs")?

A.  Yes.  On June 18, 2021, Cal/OSHA updated their Frequently Asked Questions (FAQs), found here

Q.  How are the new COVID-19 ERs different than prior guidance issued by Cal/OSHA?

A.  The primary changes relate to:

  • No face covering requirements outdoors (except during outbreaks), regardless of vaccination status, though workers must be trained to CDPH recommendations for outdoor use of face coverings.
  • Fully-vaccinated employees need NOT wear face coverings indoors.
  • Employers need to document vaccination status.
    • There are some settings where CDPH requires face coverings regardless of vaccination status.  In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.
  • Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms.
  • Employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others, upon request.
  • Employers may not retaliate against employees for wearing face coverings.
  • There are no longer physical distancing or barrier requirements regardless of employee vaccination status with the following exceptions:
    • Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees)
    • Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed groups of employees)
  • No physical distancing requirements whatsoever in the employer-provided housing and transportation regulations.
  • Where all employees are vaccinated in employer-provided housing and transportation, employers are exempt from those regulations.
  • Employers must evaluate ventilation systems to maximize outdoor air and increase filtrations efficiency, and evaluate the use of additional air cleaning systems.

The amended ERs continue to require a written COVID-19 Prevention Plan (click HERE for a link to Cal/OSHA's Model COVID-19 Prevention Program template) that addresses the following:

  • System for communicating information to employees about COVID-19 prevention procedures, testing, symptoms and illnesses, including a system for employees to report exposures without fear of retaliation.
  • Identification and evaluation of hazards - including employee input into screening, identifying workplace conditions and practices to avoid potential exposure to COVID-19.
  • Investigating and responding to cases in the workplace - responding immediately to potential exposures by following steps to determine potential exposure, providing notice to employees, and offering testings to workers who may have been exposed.
  • Correcting COVID-19 hazards - including correcting unsafe conditions and work practices and providing effective training and instruction.
  • Face coverings and respirators.
  • Adopting site-specific strategies such as changes to the workplace and work schedules, cleaning and disinfecting commonly touched surfaces, evaluating proper handwashing facilities, encouraging handwashing, providing hand sanitizers; and evaluating whether personal protective equipment is required to prevent exposure to the virus.
  • Positive COVID-19 case and illness recording requirements and making the COVID-19 Prevention Plan accessible to employees and employee representatives.
  • Removal of COVID-19 exposed workers and COVID-19 positive workers from the workplace with measures to protect pay and benefits.
  • Specific criteria that must be met for employees to return to work after recovering from COVID-19, including those that tested positive but did not develop symptoms.

The ERs contain new requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).  See Section 3205.1 (Multiple COVID-19 Infections and COVID-19 Outbreaks_ and 3205.2 (Major COVID-19 Outbreaks).  And, there are new requirements for infection prevention in employer-provided housing and transportation to and from work are included under Sections 3205.3 and 3205.4.

Cal/OSHA's website on various precautions to take regarding COVID-19 is found HERE.  Additionally, Cal/OSHA, in consultation with CDPH, issued various industry-specific guidelines, found HERE

Q.  What should an employer do to document employees' vaccination status?

A.  Cal/OSHA does not specify a single required procedure but tells employers to record the vaccination status for employees to determine which employees may not wear face coverings indoor.  These records should be kept confidential.  Employers may ask employees to:

  • Provide proof of vaccination.  The employer maintains a record of the employees who presented proof, but not the vaccine record itself. 
  • Provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
  • Self-attest to vaccination status and employer maintains a record of who self-attests.

An employer should direct employees to provide no medical or other personal information when the employees verify their vaccination status.

Nothing in the revised ETS prevents an employer from requiring all employees to wear a face covering instead of having a documentation process.

Q.  What if an employee will NOT state their vaccination status?

A.  In a vaccination-optional employment setting, an employer is not obligated to require employees to submit proof of being fully-vaccinated and employees have the right to decline to state if they are vaccinated or not.  Such employees should be treated as unvaccinated and the employer may not take discilinary or discriminatory action against the employee.

Q.  Does an employer need to purchase respirators?

A.  Probably.  An employer must provide respirators (1) to any unvaccinated employee who works with others indoors or in a vehicle and who requests one, and (2) if there is a major outbreak, to any employees in the exposed group for voluntary use.  The respirator must be the right size, and the employee must receive basic instruction on how to get a good "seal," or fit.

Q.  Do the ERs cover all California employees?

A.  Most employees.  The ERs do not apply to employees working from home, a workplace with a single employee who does not have contact with other people or employees covered by the Aerosol Transmissible Disease regulations.  Title 8, section 5199.

Q.  Will an employer be subject to Cal/OSHA issues if an employee is offered a COVID test but refuses to take the test?

A.  No.  Nor is the employer required to obtain a signed declination from employees who refuse to take a COVID-19 test offered by the employer.

Q.  What can an employer do to reduce the number of employees who might be “close contacts” if one employee tests positive for COVID?

A.  An employer may assign employees to specific and separate workspaces, even within the same building.  An employer may divide a workforce into cohorts or teams assigned to specific locations.  And, with disinfection between non-overlapping shits, each shift may be considered a separate “workplace” in the event of an exposure.

Q.  What is “Exclusion Pay” under the ERs?

A.  Employers must continue to provide employee’s pay and benefits (“Exclusion Pay”), and may offset payments by any amount that the employee received in other benefits such as unemployment or disability payments if an employee who is able and otherwise available to work is excluded from the workplace, for example, because the employee was in close contact with a co-employee while at work.  An employer may require the use of 2021 COVID-19 Supplemental Paid Sick Leave before providing Exclusion Pay.  Fully vaccinated employees, in most cases, will not need to quarantine and, therefore, will not be eligible for Exclusion Pay.  We expect that fully-vaccinated employees who show no COVID-19 symptoms, in most cases, will not need to quarantine and, therefore, will not be eligible for Exclusion Pay.

Q.  Are there are any set-offs that an employer may make against the exclusion pay?

A.  The guidance states that employers may offset payments by any amount that the employee received in other benefits such as unemployment or disability payments.  Currently, there is no guidance as to how to measure pay based on scheduling and/or employment history.

Q.  Do the ERs provide for sick leave benefits under Exclusion Pay?

A.  Yes, an employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, to the extent permitted by law.

Q.  Does Exclusion Pay apply to employees with COVID-19 symptoms?

A.  No.  The ERs state that an employee unable to work because of his or her COVID-19 symptoms would not be eligible for exclusion pay and benefits. But that employee, may be eligible for Workers’ Compensation or State Disability Insurance benefits and 2021 COVID-19 Supplemental Paid Sick Leave.

Q.  Does an employer have to provide Exclusion Pay for any employee exposed to COVID outside the workplace?

A.  No, but such employees likely qualify for 2021 COVID-19 Supplemental Paid Sick Leave.  

Q.  Are there any waivers to the ERs?

A.  Yes.  Cal/OSHA permits an employer to seek a waiver of the requirement to quarantine or isolate COVID+ or “close contacts”, if doing so creates an undue risk to public health and safety. To qualify for a waiver, an employer must fit into a very narrow operation that provides goods or services, the interruption of which would cause an undue risk to a community’s health and safety.

Q.  How do I seek a waiver?

A.  Request a waiver from Cal/OSHA by email  to rs@dir.co.gov, or, in case of an emergency by calling the local district office for a provisional waiver.  While there are no set criteria, Cal/OSHA suggests providing:

  1. Employer name;
  2. Point-of-contact name, address, email and phone number;
  3. Statement that there are no local or state health officer orders for isolation or quarantine of the excluded employees;
  4. Statement describing the way(s) in which excluding the exposed or COVID-19 positive employees from the workplace impacts the employer’s operation in a way that creates an undue risk to the community’s health and safety; a. Number of employees required to be quarantined under the ERs, and whether each was exposed to COVID-19 or tested positive for COVID-19;
  5. The employer’s control measures to prevent transmission of COVID-19 in the workplace if the employee(s) return or continue to work in the workplace, including the prevention of further exposures. These include measures such as isolating the returned employee(s) at the workplace, use of respiratory protection by other employees in the exposed workplace, or other equally effective measures.

Q.  How will the ERs be enforced?

A.  The ERs will be enforced through citations and, potentially, monetary penalties.  Cal/OSHA reports that it will take into account an employer’s good faith efforts at compliance.  Any potential leniency will not apply where an employer fails or refuses to abate a violation of the ERs that Cal/OSHA identified to the employer.

Q.  Where can I find information about COVID-19 testing locations?

A.  Cal/OSHA refers to the CDPH and National Association of County and City Health Officials websites, for scheduling tests.

Q.  I have a large number of employees that need to be tested, can I arrange for testing on-site at my facility?

A.  Yes.  On-site testing may be provided by a qualified medical provider. Cal/OSHA refers to the Valencia Branch Laboratory (VBL) to potentially partner with for on-site testing.  Be aware that setting up a testing site set up requires approximately 2-3 weeks. The VBL website is located here.

Q.  Why should I care about the new COVID-19 ERs?  Hasn’t Cal/OSHA already cited employers before these new regulations?

A.  Prior to the ERs, enforcement of safety standards concerning COVID-19 was not well defined as enforcement fell under the general guidelines issued by Cal/OSHA, not specific regulations.  Thus, most citations were limited to violations of the Injury and Illness Prevention Program (IIPP) regulation.  As IIPP is a performance standard that allows for flexibility from workplace to workplace, it is difficult to cite for enforcement purposes.

In contrast, the new COVID-19 regulations will allow Cal/OSHA to cite employers for failing to comply with its specific requirements.  As an example, “Employers shall provide face coverings and ensure they are worn by employees over the nose and mouth when indoors, when outdoors and less than six feet away from another person, and where required by orders from the CDPH or local health department.” 

The only exceptions are when (1) the employee is alone in a room, (2) when eating and drinking and maintaining social distancing and maximum outside airflow, (3) when employees are wearing respiratory protection (per the respiratory standard), (4) employees cannot wear a face-covering due to a medical or mental health condition, or (5) specific tasks that cannot be accomplished using a face covering.

Cal/OSHA’s ability to easily establish a violation will increase citation frequency.  Employers should invest time and update their written COVID-19 Prevention Plan to promptly comply with the new regulations.

Q.  Have any prior reporting requirements to Cal/OSHA changed due to the new ERs?

A.  No.  Per section 3205(c)(9), the employer shall report immediately to the Division any COVID-19-related serious illness or death.  Serious injury is defined under section 330(h).  The regulations do contain an additional requirement to keep a record of and track all COVID-19 cases, with the employee’s name, contact information, occupation, location where worked, last day at the workplace, and date of the COVID+ test.  Medical information must be kept confidential.

Note that recording work-related injuries and illnesses on the Form 300 is a separate requirement and is not impacted by the ERs.

Other Workers' Compensation and Cal/OSHA-Related Information

Q.  What are the recent reporting obligations?

A.  SB-1159, signed by Governor Newsom on September 17, 2020 codifies and modified the Governor’s May 7, 2020 Executive Order into Labor Code sections 3212.86, 3212.87 and 3212.88 to address Workers’ Compensation presumptions about COVID contracted in the workplace.  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 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' activities 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:

(8 CCR 14300.7(b) – 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

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 tested positive?  Assuming the employee requires hospitalization, how do I determine if I need to report the illness to Cal/OSHA?

A.  Cal/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:

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

  • 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.

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”) 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. 

On January 29, 2021, Fed/OSHA published additional recommendations, similar, to those required under California law that can be found here.  

Of note, is Fed/OSHA’s recommendation, based on CDC guidance, not to distinguish safety protocols for workers who are vaccinated from those where are not vaccinated.  Fed/OSHA advises that vaccinated workers should continue to follow protective measures, such as wearing facial coverings and remaining physically distant, because there is not sufficient evidence that vaccines prevents transmission of COVID-19 from person-to-person. 

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.

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 lay off, 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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