COVID-19 Resources for California Employers

LAST UPDATED: March 31, 2020

Carothers DiSante & Freudenberger LLP assembled a taskforce 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 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.

We also invite you to submit any specific questions you may have relating to our COVID-19 Task Force by emailing: covid@cdflaborlaw.com.

TABLE OF CONTENTS


THE CARES ACT

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.

Q.  What relief is provided to small businesses?

A.  In sum, the CARES Act provides emergency grants, forgivable loans and relief for existing loans to companies with 500 or fewer employees including:

  • $10 billion to grants to cover immediate operating costs.  Each grant may be in an amount up to $10,000.   
  • $350 billion dollars for the Small Business Administration to provide loans of up to $10 million dollars per business.  Any portion of that loan that is used for payroll, to keep workers employed or to pay for rent, mortgage and existing debt is eligible for forgiveness, provided workers stay employed through the end of June 2020.  (The Act requires the Small Business Administration to issue regulations on the forgiveness provisions within the next 30 days.)
  • $17 billion dollars to cover six months of payments for small businesses that already have Small Business Administration 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.  For the covered period of February 15, 2020 to June 30, 2020, 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.  The Treasury Secretary is expected to provide many details, including how and where to apply for these new loans.  Until that detail is released, applications may be submitted directly to the Small Business Administration.  Also, lenders authorized to make loans under the Small Business Act’s current Business Loan Program are automatically approved to make and approve these loans and the Department of the Treasure may add more private sector lenders.  No collateral or personal guarantee is required for a loan.  The interest rate is capped at 4%.  There will be no subsidy recoupment fee associated with the loans and no prepayment penalty for any payments made.  Additionally, the Small Business Administration has no recourse against any individual, shareholder, member or partner of an eligible loan recipient for non-payment, unless the individual uses the loan proceeds for unauthorized purposes.  Loan amounts that are not forgiven will have a maximum maturity date of 10 years from the date the borrower applied for loan forgiveness.  Borrowers who want to seek loan forgiveness under this program must submit the following information to their lender:

  1. Documentation verifying full time employees on payroll and their tax rates;
  2. Documentation of costs/payments (mortgage, rent, utilities);
  3. Certification from a business representative that the documentation is true and correct and that forgiveness amounts requested were used to retain employees and make other forgiveness-eligible payments; and

Any other documentation the Small Business Administration or lender may require.

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 at least 90% of their employment levels as of March 24, 2020 through September 20, 2020.  Approximately $39 billion of this apportionment is designated to air carriers and U.S. businesses that haven’t yet received adequate economic relief from other loans or loan guarantees (those necessary to national security).  The remaining $454 billion is designated for the Federal Reserve to create facilities that 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 come from private lenders, be subject to a 2% interest rate cap, and subject to 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, the borrower must retain 90% of its workforce at full compensation and benefits until September 30, 2020, and the borrower will not outsource or offshore jobs for a period of time ending two years after repayment of the loan. There are affirmative requirements that the employer 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, 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.

Q.  Does the CARES Act expand unemployment insurance 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 unemployment insurance benefits at the rate of an additional $600 per week for each employee receiving unemployment insurance benefits.  This supplement is provided until July 31, 2020.  The purpose of these provisions is to allow workers to temporarily collect 100% of their normal wages (instead of a reduced percentage of their wages) through unemployment insurance during the health emergency.  However, the $600 supplement is a flat amount and, as such, has the effect of allowing some workers (such as those making minimum wage or close to it) to earn more in unemployment insurance than they would have earned reporting to work.  Congress determined that it was too administratively complicated 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 they are in (states vary in how much they reimburse employees) and how much they make.  By allowing some workers to earn more than 100% in unemployment insurance benefits, this obviously potentially creates 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.

The Act also extends the amount of time workers can collect these unemployment insurance benefits.  Some states cap unemployment insurance at 26 weeks.  The Act extends unemployment insurance benefits to 39 weeks for the year 2020 only.  However, the $600 weekly supplement only lasts until July 31, 2020.

The Act does have a provision regarding fraud, which provides that any fraudulent intent or misrepresentations to obtain payments to which an individual is not entitled will result in ineligibility for any other unemployment compensation benefits under the new law as well as criminal prosecution.  Overpayments also may be clawed back by the state agencies. 

FAMILIES FIRST CORONAVIRUS ACT

General Information

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

A:  On March 18, 2020, the President signed into law the Families First Coronavirus Response Act (FFCRA) that will be effective April 1, 2020, and applies to leave taken between April 1 and December 31, 2020.  A detailed discussion of the FFCRA is found here:  [url=https://www.callaborlaw.com/entry/new-federal-coronavirus-paid-leave-law-what-all-employers-need-to-know]https://www.callaborlaw.com/entry/new-federal-coronavirus-paid-leave-law-what-all-employers-need-to-know[/url].  The DOL updated its website several times providing guidance, Q&As and Posters.  https://www.dol.gov/agencies/whd/pandemic.  The FFCRA requires employers with less than 500 employees to provide up to 10 days of paid sick leave to their employees for Coronavirus-related absences, and also requires employers with less than 500 employees to provide up to 12 weeks of FMLA leave (10 of which are paid) to employees who cannot work due a Coronavirus-related closure of their childrens' school/child care.  The law provides payroll tax credits for employers to cover their provision of paid leave under the FFCRA.  More federal guidance is still expected, along with a model notice for employer use.

Q:  Which employers does FFCRA apply to?

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

Q:  Are small employers bound by the FFCRA even though they are not subject to the FMLA?

A:  Yes, but employers with less 50 employees may qualify for exemption from certain portions of the FFCRA.  In new (and changed) guidance issued by the DOL on March 30, 2020, the DOL suggested that employers with less than 50 employees may only qualify for exemption from providing paid leave (sick leave and expanded family leave) for reasons of a child's school closure.  The other reasons for use of paid sick leave still apply to these employers.  

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

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

It remains unclear whether a small business seeking exemption needs to actually submit a request to DOL and obtain approval, or not.

Q:  Does the FFCRA provide paid sick leave for employees?

A:  Yes.  The FFCRA requires covered employers to provide up to 10 days (80 hours for a full-time employee) of paid sick leave that an employee may use for any of the following reasons: (1) the employee is subject to a federal, state or local quarantine or isolation order related to Coronavirus; (2) the employee is advised by a health care provider to self-quarantine due to Coronavirus concerns; (3) the employee is experiencing symptoms of Coronavirus and seeking a medical diagnosis; (4) the employee is caring for an individual who is under a quarantine or isolation order or has been advised to self-quarantine; (5) the employee is caring for a child whose school or child care has closed due to Coronavirus; or (6) the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

For more information, see:  https://www.callaborlaw.com/entry/new-federal-coronavirus-paid-leave-law-what-all-employers-need-to-know.  The most recent DOL guidance (March 30) on the paid leave provisions of the FFCRA is here:  

Q:  Do part-time employees receive the same number of hours of paid sick leave as full-time employees?

A:  No.  A part-time employee is entitled to leave for his or her average number of work hours in a two-week period based on the number of hours the employee is normally scheduled to work. Employers may use a six-month average to calculate the average daily hours.  The DOL's guidance on this issue is here.

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

A:  If an employee uses paid sick leave for reasons (1) – (3) above, the employee must be paid the greater of the employee’s regular rate of pay or the applicable state/local minimum wage, subject to a cap of $511 per day and $5110 in the aggregate.  If an employee uses paid sick leave for reasons (4) – (6) above, the employee must be paid the greater of 2/3 the employee’s regular rate of pay or the applicable state/local minimum wage, subject to a cap of $200 per day and $2000 in the aggregate.  Please note that the term "regular rate of pay" does not necessarily mean the employee's base hourly rate of pay.  If a non-exempt employee is involved, and earns additional forms of non-discretionary compensation on top of their base hourly rate, that compensation may need to be included in determining the employee's regular rate of pay for purposes of payment of paid sick leave under the FFCRA.  In other words, the term "regular rate of pay" has the same meaning as it does for overtime purposes under the FLSA.  Please see the DOL’s March 30 guidance here, which includes additional information on calculating pay for part-time employees. Please note that the DOL has issued additional guidance on employers' ability to supplement employees' paid leave under the FFCRA with paid leave benefits under other employer paid leave policies.  That guidance is here.

Q:  How does an employer count hours worked for part-time employees under the FFCRA?

A:  A part-time employee receives leave for the average number of work hours worked in a two-week period.  This may be easy if the employee has regular work schedule.  If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, the employer should use a six-month average to calculate the average daily hours.  If the employee has not been employed for at least six months, use the number of hours that were agreed that the employee would work upon hiring.  And if there is no such agreement, calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

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

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

Q:  Are overtime hours included in the FFCRA paid sick leave?

A:  Yes, however, the 80 hour cap will not change.  So, an eligible employee that had been regularly scheduled to work 50 hours per week, may receive 50 hours of paid sick leave in the first week and only 30 hours in the second week.  There is no overtime premium pay for overtime hours under either FFCRA paid sick or paid Family Leave.   

Q:  How is an employee’s regular rate of pay calculated for FFCRA purposes?

A:  Similar to the measure for counting the hours of a part-time worker, the regular rate of pay used to calculate paid leave is the average of an employee’s regular rate over a period of up to six months prior to the date on which the employee takes leave. Employees who have not worked for their current employer for six months, the regular rate used to calculate paid leave is the average of the regular rate of pay for each week the employee worked for his or her current employer.

Commission, tip, or piece rate employees’ pay should be calculated in the same manner to the same extent they are includedas in the calculation of the regular rate under the FLSA.  Or, the employer may compute this amount for each employee by adding all compensation that is part of the regular rate over that period and dividing that sum by all hours actually worked in the same period.

Q:  Can an employee take maximum paid sick leave for one reason and then seek additional paid sick leave for a different reason?

A:  No.  Each employee’s total hours of paid sick leave from April 1, 2020 to December 31, 2020 is capped.

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

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

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

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

Q:  Does the FFCRA also provide paid FMLA leave (in addition to paid sick leave)?

A:  Yes, the FFCRA expands the FMLA by providing that employees may take up to  twelve weeks of FMLA leave to care for a child whose school/child care has been closed due to the pandemic.  Employees do not need to meet normally applicable eligibility requirements for FMLA leave (12 months of service and at least 1250 hours worked in the year preceding the leave).  Instead, an employee need only be employed for 30 days in order to be eligible for leave.  The expanded FMLA leave applies to all employers with fewer than 500 employees (though employers with less than 50 employees can seek an exemption and employers of healthcare providers/first responders can exempt these employees).  Furthermore, ten weeks of the expanded FMLA leave must be paid.  An employee can use paid sick leave for the other two weeks.   Note:  The DOL has confirmed that this is NOT an additional 12-week leave bucket (on top of an employee's 12-week FMLA leave bucket for other qualifying FMLA reasons).  Thus, if an employee has already exhausted his or her 12 weeks of FMLA leave for other reasons, an employer does not need to provide another 12 weeks for a virus-related school closure.  However, California employers beware: the expanded FMLA leave does not run concurrently with CFRA leave and its use will not count toward an employee’s CFRA leave entitlement.  The DOL’s guidance on the FFCRA’s paid leave provisions is here.  

Q:  Which employees does FFCRA's expanded FMLA leave apply to?

A:  The expanded family leave entitlement applies to any person employed for at least 30 days.  There is no minimum hours worked threshold for this expanded leave entitlement.  The Department of Labor explains that this means an employee on payroll for 30 calendar days preceding the leave, and does not mean 30 days actually worked.  Someone taking leave on April 1, 2020, is eligible for FFCRA paid Family Leave if that person was on the employer’s payroll as of March 2, 2020.

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

A:  Yes, for a total of twelve weeks paid leave.  The employee will received two weeks of paid sick leave followed by ten weeks of paid family leave.

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

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

Q:  Does the FFCRA create paid FMLA leave for non-COVID-19 use of FMLA leave?

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

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

A.  Yes, but only with employer approval.  The DOL's guidance on this issue is here.

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

A.  The documentation depends on the reason for the use of the leave.  The DOL's March 30, 2020 guidance on this issue is here.

A.  Employees are required to bring documentation required by IRS forms, which are not yet published.  Employers may also require additional support if the paid FMLA leave is to care for a child whose school is closed, such as government poster, email from a school official or employee, or child care provider.  Further, all FMLA medical certifications for serious health conditions remain in effect.  The DOL's March 30, 2020 guidance on this issue can be found at www.dol.gov/agencies/whd/pandemic/ffcra-questions.  Employers should retain copies of the documentation provided.

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

A.  Yes, the FFCRA provides for payroll tax credits for employers for their provision of paid leave benefits in compliance with the Act.  The Department of Treasury/IRS is expected to issue details for employers on the procedure to obtain these tax credits by early April.

Q:  Is the FFCRA paid sick leave or paid FMLA leave retroactive?

A:  No.

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

A:  Yes.  Employees are entitled to continued group health coverage during expanded family and medical leave on the same terms as if they continued to work. Employees must continue to make any normal contributions to the cost of health coverage.

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

A:  No.  The DOL's guidance on this issue is here.  These employees may be eligible for unemployment insurance benefits, however.

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

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

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

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

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

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

Q:  If, prior to the effective date of the FFCRA, an employer has been voluntarily paying employees who aren’t working for reasons covered by the FFCRA, does the employer get credited for those benefits?

A:  No.  The employer will not get payroll tax credit for paid leave benefits provided prior to March 18, 2020.  It also does not appear that employers will get credit for paid leave benefits provided between March 18, 2020 and March 31, 2020 (the period of time between the FFCRA's enactment and its effective date on April 1, 2020.)  This last aspect remains unclear, however.  Current DOL guidance suggests that credit is only available for payments made on or after April 1, 2020.   

Q:  The FFCRA says it takes effect “not later than 15 days after enactment.”  Is it in effect now?

A:  The FFCRA says that it takes effect no later than 15 days after its enactment on March 18, 2020 (by April 2, 2020).  However, on March 24, 2020, the DOL issued guidance saying the Act is effective April 1, 2020.  (Note also that last week, on March 20, the IRS issued a press release indicating that covered employers may begin taking advantage of the payroll tax credits immediately.  Clarification remains needed on It appears that whether paid sick leave provided between March 18 and March 31 will not be eligible for tax credit. It appears the answer is no, subject to express contrary guidance from the IRS/Treasury.).

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

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

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

A.  Yes, the new federal law provides dollar for dollar payroll tax credits for covered employers who provide paid sick leave and/or paid family medical leave benefits, as required by the new law.  Details on how to obtain those credits has not been released yet, and are expected in early April.  

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

A:  Probably not.  As long as you are making a good faith effort at compliance and make any employees whole if you made an error, the DOL has announced a thirty-day non-enforcement period from March 18, 2020 to April 17, 2020.  If you find yourself in this situation, check with your counsel to ensure that you comply with the DOL’s good faith requirements.  https://www.callaborlaw.com/entry/coronavirus-updates-shelter-in-place-updated-eeoc-guidance-and-more.

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

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

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

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

 

Healthcare Industry Specific Information

Q.  Are employees of healthcare providers covered under the FFCRA?           

A.  Some are.  The FFCRA excludes some employees of healthcare employers.  Specifically, the FFCRA provides that an employer may elect to exclude employees who are a “healthcare provider” or an “emergency responder” from FFCRA coverage.  The DOL also may adopt regulations exempting these employees.

Q.  May healthcare employers exclude some but not all employees from FFCRA coverage?

A.  Probably.  The FFCRA provides that:  “Employers of Health Care Providers or Emergency Responders may elect to exclude such employees from eligibility for the leave provided under the Act.”  This language seemingly permits a healthcare employer to exclude providers on an individual basis.

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

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

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

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

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

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

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

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

A.  Generally, yes (with the exceptions noted above) but the FFCRA provides that the Secretary of Labor has authority to adopt regulations to exempt small businesses with fewer than 50 employees from FFCRA requirements if those requirements would jeopardize the viability of the business as a going concern.  Small healthcare employers should benefit from such exemptions to the same extent as other small businesses, once regulations are promulgated The Department of Labor indicates that regulations are supposed to be published in April.

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

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

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

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

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

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

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

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


GOVERNMENT LIMITATIONS ON GATHERINGS AND BUSINESSES

State of California

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

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

County Orders

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

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

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


REMOTE WORK ISSUES

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

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

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

A.  Yes, if they are non-exempt.

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

A.  Yes, if they are non-exempt.

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

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

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

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

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

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

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

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

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

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


PAY AND LEAVE ISSUES

General Information

Q.  If I have an “essential business” and/or am in the “critical infrastructure sector” as defined by the Department of Homeland Security and/or state and local authorities as "exempt" from 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.  Of course, if an employee qualifies for Coronavirus-related leave, the employee’s needs should be accommodated.

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

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

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

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

  • Short-term partial wage replacement is available if employees are ill due to having or being exposed to COVID-19 under the disability insurance program.  Governor Newsom’s March 12, 2020 Executive Order waives the one-week waiting period for state disability insurance becomes payable.  For details visit: https://edd.ca.gov/about_edd/coronavirus-2019.htm.
  • State unemployment insurance benefits are also available to eligible employees whose hours are reduced or eliminated due to COVID-19. Governor Newsom issued an Executive Order waiving the one-week waiting period for unemployment insurance benefits.  For details visit: https://edd.ca.gov/about_edd/coronavirus-2019.htm.  And, the requirement that employees actively seek employment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A.  California state and local laws limit the circumstances under which an employer may require a doctor's note for COVID-19 reasons.  However, where employers are providing paid leave (sick leave and expanded FMLA school-closure leave) under the federal FFCRA, please note that DOL guidance issued on March 30, 2020 suggests that employers request and retain documentation specified in yet-to-be-published IRS forms, substantiating the need for leave. Employers may need this in order to substantiate related payroll tax credits. Stay tuned for more information from IRS.  Where leave is taken by an employee to care for a child whose school/child care has closed due to Covid-19, the employer can require supporting documentation of the closure (e.g. a district/county closure notice, etc.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Employers should also advise employees that state unemployment insurance benefits may be available to eligible employees who are laid off 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.

City Issues

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

A:  Yes.  San Francisco, and likely more to come.  Information on San Francisco's local paid sick leave guidance is here:  https://www.callaborlaw.com/entry/san-francisco-olse-issues-new-guidance-on-use-of-paid-sick-leave-for-covid-19-related-reasons.  The Los Angeles City Council passed a paid sick leave measure on March 27 which, if signed by the Mayor, will require businesses with MORE than 500 employees nationally to provide employees working in the City with an additional 80 hours of paid sick leave to be used for Covid-19 purposes during 2020.  For more information, see here.

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

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

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

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

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

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

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


EXPOSURE TO COVID-19 ISSUES

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

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

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

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

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

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.


OSHA/WORKPLACE SAFETY

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

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

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

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

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

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

Consider the following:

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

Continue to monitor updates on preventing COVID-19, which can be found via the following link: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecific-groups%2Fguidance-business-response.html.


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 H-1B employee requests unpaid leave and cites a non-work related reason.

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

A.  No.  Nonimmigrant workers including H-1Bs are not eligible for unemployment benefits.  Nonimmigrants 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 H-1B worker has 60 days to find another job or leave the country, so that employee might not be around to rehire.  Terminating the H-1 employee requires the employer to pay the cost of a one way plane ticket back to his/her home country.  Additionally, terminating an H-1B 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.  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.  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.  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, potentialy
  • 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 circumstantces 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.  How and when do I deliver 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

Carothers DiSante & Freudenberger LLP © 2020


Carothers DiSante & Freudenberger LLP © 2020

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