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While it seems like we are receiving updates by the minute from the government, news organizations, and businesses that are closing, it is important for employers to stay calm to weather the emotional and financial storm that is spreading around the world.
However, very few articles and news reports are addressing ways to mitigate the financial impact of this pandemic through government benefit programs that are available to replace wages for workers who have been laid off, reduced hours, diagnosed with Coronavirus, or are taking care of a family member with the virus.
Read below to learn employer obligations, when to restrict employee travel, use of Paid Sick Leave and PTO, and medical leave laws. In addition, discover relief programs such as:
FMLA/CFRA leave
Unemployment Insurance
Disability Insurance
Tax Relief
Paid Sick Leave
Paid Family Leave
Due to the evolving nature of this issue, please also click on the links provided for the latest government- issued information, and visit the Center for Disease Control (CDC), the Occupational Safety Health Administration (OSHA), CalOSHA, along with local public health authorities, should be where employers turn for specific workplace safety guidance.
Some of the items in this article are general for employers in all states, but check the local agencies in your state for wage and hour rules, and the most up-to-date information. Information from the California Department of Industrial Relations Q&A is designated as such.
Employer Obligations for Health and Safety
First and foremost, an employer is required to provide a safe workplace per OSHA regulations. If an employee has contracted COVID-19, that employee should be sent home from work immediately. The employer should seek information about who the employee may have come into close contact with through his or her work to advise others of their risk of exposure. Employers should share non-identifying information (avoiding names and other obvious information that could make the individual known), with other employees who work at the same location, as they are at increased health risk. Any employee that has come into close contact with the infected employee should also be sent home from the workplace for 14 days. For specific guidance how to deal with COVID-19 positive employees, please contact your local health authority.
Since the WHO has classified COVID-19 as a “pandemic,” the EEOC has stated that employers can require employees exhibiting any symptoms associated with COVID-19 to be sent home from, or not report to, work. However, Employers must be be careful to apply such practice consistently and in a manner that does not discriminate against any protected classes.
Can you Restrict Employee Travel?
Because COVID-19 has been declared a pandemic, employers do not have to wait until an employee develops symptoms to ask about potential exposure. If the CDC or local health authorities recommends that individuals traveling to an affected area stay home for a period of time, then employers may do the same. It is recommended you obtain information from the CDC if you have any employees in that situation.
The CDC recommends that travelers, particularly those with underlying health issues, cancel cruise ship travel worldwide.
Before returning to work after traveling, employees may be required to: (1) Obtain a medical release stating they show no signs/symptoms of COVID-19 and may return to work, (if practicable), OR (2) Be placed on a quarantine at home until symptoms abate. The businesses must decide what level of risk is acceptable in terms of how soon they initiate the work-from-home option.
Employers’ Compensation Obligations When Employees are Sent Home
In California, generally, if an employee reports for their regularly scheduled shift but is required to work fewer hours or is sent home, the employee must be compensated for at least two hours, or no more than four hours, of reporting time pay.
For example, a worker who reports to work for an eight-hour shift, but only works for one hour, must receive four hours of pay: one for the hour worked, and three hours as reporting time pay so that the worker receives pay for at least half of the expected eight-hour shift.
Additional information on reporting time pay is posted online on the California Department of Industrial relations website.
If an employer shuts down its offices/facilities, non-exempt employees do not need to be paid when work is not being performed. However, for exempt employees, the general rule is that exempt employees need to be paid for all weeks in which some work is performed (even one hour of that week). Therefore, if offices/facilities are shut down for portions of a week, exempt employees receive their full salary for the full week.
However, if offices/facilities are shut down for a full week, and the employee does not work at all, employers are not required to pay exempt employees for weeks where no work is performed. You will have to be sure that the employee did not conduct any work during a week in order to not provide wages. Take caution on this matter when employees work from home or remotely (including answering calls and emails from their cell phone). Check the rules on cell phone and equipment reimbursement in California.
What Leave Laws are in Place?
There are statutory family leave laws that generally allow eligible employees to take up to 12 weeks off for certain health or family-related reasons that are protected by law. If your company has 50 or more employees, it is covered under the Family Medical Leave Act (FMLA) or California Family Rights Act (CFRA). Employees are eligible for FMLA/CFRA leave if they have been with the company for at least 12 months, and have worked at least 1250 hours in the 12 months prior to the requested leave. An eligible employee can take FMLA and/or CFRA leave for serious health conditions related to the employee, or the employee’s immediate family members. The Coronavirus infection could be considered a “serious health condition” under FMLA and CFRA. If eligible employees are unable to work due to COVID-19 related symptoms, they should be provided with the FMLA/CFRA paperwork by their company benefits administrator.
Use of Paid Sick Leave and Vacation/PTO
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In California, if the employee has paid sick leave available, the employer must provide such leave and compensate the employee under California paid sick leave laws. Paid sick leave can be used for absences due to illness; the diagnosis, care, or treatment of an existing health condition; or preventative care for the employee or the employee’s family member.
Preventative care may include “self-quarantine” as a result of potential exposure to COVID-19, if quarantine is recommended by civil authorities. In addition, there may be other situations where an employee may exercise his or her right to take paid sick leave. An employer may allow paid sick leave for preventative care, such as when there has been exposure to COVID-19, or where the worker has traveled to a high risk area.
Employers may require employees to use any available PTO or vacation for their absences associated with COVID-19. Commonly, employers have policies in place that state employees must use all available paid time off before utilizing unpaid time off. However, under California Paid Sick leave, employers cannot require employees to use PSL (or PTO if the employer has combined PSL and PTO), under any circumstance, including for the COVID-19. The Department of Industrial Relations has issued guidance for employers. The employee must volunteer to use his or her PSL.
Paid Sick Leave for Employees and their Children
Under California Paid Sick Leave, employees have a right to use sick time for a closure of their child’s school (or daycare) due to this public health emergency. While public schools are closed, employers should consider allowing employees to work remotely, if their job duties allow for it. Employers with 25 or more employees at the same location are also covered by California School Activities Leave (Labor Code 230.8, 233) which allows for up to 40 hours per year of protected time off for emergency school closures.
Paid Leave
If an employee does not qualify to use paid sick leave, or has exhausted sick leave, other leave may be available. If there is a vacation or paid time off policy, an employee may choose to take such leave and be compensated provided that the terms of the vacation or paid time off policy allows for leave in this circumstance.
Employers can request that employees inform them if they are planning or have traveled to countries considered by the Centers for Disease Control and Prevention to be high-risk areas for exposure to the coronavirus. However, employees have a right to medical privacy, so the employer cannot inquire into areas of medical privacy.
Notice Requirements in the Event of Shutdown, Layoff, or Reduction in Hours
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If employers do have to close facilities or lay off employees due to COVID-19, employers need to determine whether the Worker Adjustment and Retraining Notification Act (WARN) or California’s companion law applies. These laws require covered employers to provide written notice before a plant shutdown or covered mass layoff. The law does have an exception to the notice provision for “unforeseeable business circumstance” that is caused by some sudden, dramatic, and unexpected action or conditions outside the employer’s control. It could be argued that COVID-19 would be considered an unforeseeable business circumstance. Regardless, employers still give employees notice of such layoffs or closures as soon as practicable. Speak with a qualified employment law attorney before proceeding with layoffs, closures, or reduced schedules.
FEDERAL PROGRAMS
The Families First Coronavirus Response Act, which takes effect April 2, 2020, responds to the Coronavirus outbreak by providing paid sick leave and free Coronavirus testing, expanding food assistance and unemployment benefits, and requiring employers to provide additional protections for health care workers.
Specifically, the bill provides FY2020 supplemental appropriations to the Department of Agriculture (USDA) for nutrition and food assistance programs, including
the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC);
the Emergency Food Assistance Program (TEFAP); and
nutrition assistance grants for U.S. territories.
The bill also provides FY2020 appropriations to the Department of Health and Human Services for nutrition programs that assist the elderly.
The bill also includes provisions that:
establish a federal emergency paid leave benefits program to provide payments to employees taking unpaid leave due to the coronavirus outbreak,
expand unemployment benefits and provide grants to states for processing and paying claims,
require employers to provide paid sick leave to employees,
establish requirements for providing coronavirus diagnostic testing at no cost to consumers,
treat personal respiratory protective devices as covered countermeasures that are eligible for certain liability protections, and
temporarily increase the Medicaid federal medical assistance percentage (FMAP).
Family and Medical Leave Act (“FMLA”)
The Family and Medical Leave Act (“FMLA”) has been temporarily expanded to provide up to 12 weeks of protected time off for any employee (who has been employed for at least 30 calendar days) who is unable to work or telework due to the need to care for a child under 18 if the child’s school or child care is closed, or if the child care provider is unavailable, due to Coronavirus-related concerns.
If an employee requests such a leave, the first two weeks can be taken on an unpaid basis. After that, the employer must provide paid leave of at least 2/3 of the employee’s regular rate of pay, with a cap of $200/day and $10,000 aggregate. These payments (up to the caps) will be credited at 100% on the employer’s quarterly payroll taxes.
CALIFORNIA BENEFITS AND PROGRAMS
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Disability Insurance for Exposed Workers
California workers who are unable to work due to having or being exposed to COVID-19 (certified by a medical professional), can file a Disability Insurance (DI) claim. DI provides short-term benefit payments to eligible workers who have a full or partial loss of wages due to a non-work-related illness, injury, or pregnancy. Benefit amounts are approximately 60-70 percent of wages (depending on income) and range from $50-$1,300 a week.
The Governor’s Executive Order waives the one-week unpaid waiting period, so workers can collect DI benefits for the first week they are out of work. If they are eligible, the EDD processes and issues payments within a few weeks of receiving a claim.
For guidance on COVID-19, visit the California Department of Public Health website. Please check Department of Health website in other states for available benefits.
Paid Family Leave for Caregivers
If you’re unable to work because you are caring for an ill or quarantined family member with COVID-19 (certified by a medical professional), you can file a Paid Family Leave (PFL) claim. PFL provides up to six weeks of benefit payments to eligible workers who have a full or partial loss of wages because they need time off work to care for a seriously ill family member or to bond with a new child. Benefit amounts are approximately 60-70 percent of wages (depending on income) and range from $50-$1,300 a week. If you are eligible, the EDD processes and issues payments within a few weeks of receiving a claim.
Unemployment Insurance for Parents of Children at Closed Schools
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If your child’s school is closed, and you have to miss work to care for or watch them, you may be eligible for Unemployment Insurance benefits. Eligibility considerations include if you have no other care options and if you are unable to continue working your normal hours remotely. File an Unemployment Insurance claim and EDD representatives will decide if you are eligible.
Unemployment Insurance Claims for Workers with Reduced Hours
If your employer has reduced your hours or shut down operations due to COVID-19, you can file an Unemployment Insurance (UI) claim. UI provides partial wage replacement benefit payments to workers who lose their job or have their hours reduced, through no fault of their own. Workers who are temporarily unemployed due to COVID-19 and expected to return to work with their employer within a few weeks are not required to actively seek work each week. However, they must remain able and available and ready to work during their unemployment for each week of benefits claimed and meet all other eligibility criteria. Eligible individuals can receive benefits that range from $40-$450 per week.
The Governor’s Executive Order waives the one-week unpaid waiting period, so you can collect UI benefits for the first week you are out of work. If you are eligible, the EDD processes and issues payments within a few weeks of receiving a claim.
What if You Are Self-Employed?
The available benefits to self-employed workers are insurance programs. To be eligible, either you or an employer had to make contributions in the past 5 to 18 months. It is possible these contributions were made at a prior job, or if you were misclassified as an independent contractor instead of an employee. Visit the EDD’s Self-Employed/Independent Contractor page to learn more.
Reduced Work Hours
Employers experiencing a slowdown in their businesses or services as a result of the coronavirus impact on the economy may apply for the UI Work Sharing Program. This program allows employers to seek an alternative to layoffs — retaining their trained employees by reducing their hours and wages that can be partially offset with UI benefits. Workers of employers who are approved to participate in the Work Sharing Program receive the percentage of their weekly UI benefit amount based on the percentage of hours and wages reduced, not to exceed 60 percent.
Visit Work Sharing Program to learn more about its benefits for employers and employees, and how to apply.
Potential Closure or Layoffs
Employers planning a closure or major layoffs as a result of the coronavirus can get help through the California EDD Rapid Response program. Rapid Response teams will meet with you to discuss your needs, help avert potential layoffs, and provide immediate on-site services to assist workers facing job losses. For more information, refer to the Rapid Response Services for Businesses Fact Sheet (DE 87144RRB) (PDF) or contact your local America’s Job Center of CaliforniaSM.
Tax Assistance
Employment Development Department | http://www.edd.ca.gov
Employers experiencing a hardship as a result of COVID-19 may request up to a 60-day extension of time from the California EDD to file their state payroll reports and/or deposit state payroll taxes without penalty or interest. A written request for extension must be received within 60 days from the original delinquent date of the payment or return.
For questions, employers may call the EDD Taxpayer Assistance Center.
Toll-free from the U.S. or Canada: 1-888-745-3886
Hearing impaired (TTY): 1-800-547-9565
Outside the U.S. or Canada: 1-916-464-3502
Resources
Employment Resources
Labor and Workforce Development Agency – Resources for employers and workers including workers’ compensation and paid sick leave.
Labor Commissioner’s Office FAQs – Employee leave options, compensation, and salary.
Department of Fair Employment and Housing – Job protection and employment discrimination.
Health Resources
The Grady Firm can assist your company with preparing a Communicable Illness Plan, drafting notices re evolving policies to distribute employees, and answer employment questions on a case-by-case basis.
The Grady Firm attorneys provide the following employment law services:
Act as I-9 agent;
I-9 audit preparation or defense;
Employee v. independent contractor classification analysis;
Assistance with converting independent contractors to employees;
On-site, classroom-style Sexual Harassment training for employees and supervisors;
“Experiential” supervisor training in which managerial employees practice processing a harassment complaint and commencing an investigation in pairs with other trainees.
Draft and review Employee Handbooks, arbitration agreements, and Anti-Harassment policies;
Employee personnel file audits;
E-Verify account creation and monitoring;
Assistance with the employee on-boarding, discipline, and termination process;
Medical leave policies and implementation advising; and
Litigation defense.
To learn more about ensuring your business is compliant with state and local laws, schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; call +1 (949) 798-6298; or fill out a Contact Request Form. The Grady Firm has offices in Beverly Hills, Newport Beach, and San Diego, California.
*Jennifer A. Grady, Esq. is licensed to practice employment law in California.
This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.
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