By Jeff Epstein
The current situation with the Coronavirus pandemic is something that employers were certainly not prepared to deal with. It is a fluid situation that changes daily. This bulletin is a guideline based on current government policies and the status of the pandemic. If you have any questions, please do not hesitate to contact me.
1. WHAT THE LAW ALLOWS AND PROHIBITS AN EMPLOYER FROM DOING
A. Time Off – Reporting to Work
Employers can set a policy that prohibits an employee from reporting to work or be sent home if they exhibit any of the symptoms of the virus – fever (The Centers for Disease Control considers a person to have a fever when he or she has a measured temperature of at least 100.4 °F [38 °C]), cough, shortness of breath. But you cannot require employees to get tested for the Coronavirus. You can have them stay home for the 14-day incubation period.
You can ask employees what countries they have recently traveled to or if they have been around anyone they know has Coronavirus. If they have been to a country with a high rate of the virus, such as Italy, or exposed to someone with Coronavirus, you can ask them to stay home for the 14-day incubation period.
Employers must be careful to avoid making assumptions about not allowing an employee to work based upon protected characteristics such as race, ethnicity or national origin. Employees with protected characteristics are still protected by the law.
Unless a government entity has ordered employees not to go to work in a geographical area or to certain types of business, i.e. schools, an employee is expected to report to work at the office, unless prohibited by the employer based on the above guideline. Of course, a business is free to direct the employee to work from home if it is feasible. The employer must pay for any needed equipment or data service.
When an employee is expected to work at a site other than the home office, they still must do so. This is true unless there is a government order preventing this or the employer becomes aware that there is a real legitimate danger the employee might be exposed to Coronavirus at the site they are expected to work.
The New Federal Families First Coronavirus Response Act:
The Senate has now passed this bill. President Trump has signed the bill. The bill covers all companies with up to 500 employees. Employers’ obligations would become effective within 15 days of after the President signs it and would automatically expire on December 31, 2020. Full-time employees (regardless of how long the employee had been employed prior to the leave) get 80 hours of paid sick leave. Part-time employees receive only the number of hours they have worked over an average two-week period.
These leave benefits are available only to employees who are absent from work for reasons related to Coronavirus. There are six qualifying reasons for coverage under this bill:
- The employee is subject to a federal, state or local quarantine or isolation order related to Coronavirus;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to Coronavirus;
- The employee is experiencing symptoms of Coronavirus and seeking medical diagnosis;
- The employee is caring for an individual who is subject to a federal, state or local quarantine order, or the individual has been advised to self-quarantine due to concerns related to Coronavirus;
- The employee is caring for the employee’s son or daughter, if the child’s school or child- care facility has been closed or the child’s care provider is unavailable due to Coronavirus precautions; or
- The employee is experiencing any other substantially similar condition specified by Health and Human Services in consultation with the Department of the Treasury and the Department of Labor.
Benefits for Employees: Normal leave is unpaid, but under the FFCRA, employees who are on sick leave because they are sick can receive their full pay, up to $511 per day, or $5110 total.
Leave taken to care for children whose schools or day care centers have closed is paid at two-thirds the employee’s regular rate of pay, with a maximum of $200 per day or $10,000 total.
Employers cannot force an employee to use up their existing vacation or other sick time before receiving this benefit. In other words, employees are entitled to exhaust all available emergency paid leave provided by this Act before they are required to use any otherwise available leave benefits their employer may offer. There is a ten-day waiting period before this benefit applies. Employees can use existing sick or vacation time to cover these days.
Benefits for Employers: Employers receive tax credits for 100 percent of what they pay out to employees, with the above-noted limits. These tax credits would be provided on a quarterly basis and are allowed against the employer’s Social Security taxes.
For employers with 50 or fewer employees, the Secretary of Labor can exempt the business from these requirements. Expect the Secretary of Labor to issues regulations covering exemptions. Employers with fewer than 25 employees do not have to restore employees to their previous positions.
Hourly employees: If an employee has paid sick leave available they can use that sick leave if they get ill with the virus. That is the same for any illness. However, there is additional provisions that apply to this situation.
Paid sick leave can be used for absences due to preventative care for the employee or an employee’s family member. Preventative care may include self-quarantine as a result of potential exposure to Coronavirus if quarantine is recommended by a government entity or to visit a doctor to determine if the employee has the virus. In addition, an employee may exercise their right to take paid sick leave where there has been exposure to the virus or where the worker has traveled to a high-risk area.
If the employee has exhausted paid sick leave, the employee can use available paid vacation time or paid time off (PTO) if the employer’s policy allows for paid leave in these circumstances.
You cannot require an employee to use sick leave if they miss time at work. The employee has the right to determine how much paid sick leave they want to use. But the employer can require that the employee use a minimum of two hours of paid sick leave if they use any of their paid sick leave at all.
If an employee reports to work for their regular shift and is sent home, they must be paid no less than for two hours and no more than four hours (called reporting time pay). So if at work for one hour and are sent home they get one hour of pay and two hours of reporting time pay. However, no reporting time pay is due:
- When the employer’s operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue.
- When public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system.
- When the interruption of work is caused by an Act of God or other cause not within the employer’s control, for example, an earthquake or pandemic.
Employees at worksites with 25 or more employees are provided up to 40 hours of unpaid leave per year for specific school-related emergencies, such as the closure of a child’s school or day care by a government entity. The leave may be paid or unpaid depending on the provisions of the employer’s paid leave, vacation or other paid time off policies. Employers may require employees use their paid vacation or paid time off benefits for this type of leave before they are allowed to take unpaid leave but cannot mandate that employees use paid sick leave. However, a parent may decide to use any available paid sick leave to be with their child as preventative care.
Exempt employees: This can be a bit complicated (as if everything else is simple). An exempt employee must meet the pay and other state criteria to qualify as exempt from certain employment laws, such as overtime pay. If you have questions whether an employee is actually exempt, call me to discuss the details. What follows are the applicable rules for exempt employees.
An exempt employee who performs no work at all during a week may have their weekly salary reduced. If the employee has available accrued PTO or vacation pay, the employer can require the employee to use the available PTO/vacation. You have to be careful, as no work means the employee must perform no work at all—this means no emailing, no phone calls.
Deductions from salary for absences of less than a full day for personal reasons or for sickness are not permitted. If an exempt employee works any portion of a day, there can be no deduction from salary for a partial day absence for personal or medical reasons.
Deductions from salary may be made if the exempt employee is absent from work for a full day or more for personal reasons other than sickness and accident, so long as work was available for the employee, had they chosen to work. if the employer has a bona fide sickness plan which provides a reasonable number of days off without loss of compensation for absences due to illness and the employee has exhausted his/her allowance under the plan or is not yet eligible under the plan, then the employer may make salary deductions for full days of work missed.
Family Leave Laws: Where an employer has 50 or more employees, an employee may use their 12 weeks of unpaid family leave if he or she, or a spouse or child, has a serious health condition and otherwise satisfy the leave’s eligibility criteria. Although the symptoms of Coronavirus are flu-like, it may be considered a serious health condition depending on the circumstances including the current rate of fatalities. Accordingly, an employee with Coronavirus or an employee who is taking care of a qualifying family member with the virus may be permitted to take protected leave. However, employees who refuse to come to work out of fear of contracting Coronavirus would not typically qualify for such leave.
C. Communication with Employee
Employers are still prohibited from asking an employee about specific medical information such as did the employee test positive for Coronavirus. You can take action based upon any observation of symptoms, but not ask about test results. An employee can voluntarily tell you about test results.
If an employee asks about a medical condition of a fellow employee you cannot give specifics. Just say the employee is out from work and will return at a latter date. Medical information must remain confidential.
D. In General
Do not retaliate for any employee for exercising their rights as described above. Do not violate any laws regarding pay or discrimination. All the laws protecting employees still apply and the cost to the business for any lawsuit by an employee is not worth taking any chance.
2. HOW DOES UNEMPLOYMENT INSURANCE WORK WITH THE PANDEMIC
The EDD has issued guidelines for employees and employers for Coronavirus. Regarding the information intended for employees, you probably should in some manner make that information known to your employees as it will protect your business and may be less expensive for you in the long run.
A. Sick or Quarantined
If an employee is unable to work due to having or being exposed to Coronavirus (certified by a medical professional), the employee 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. The benefit amounts are approximately 60-70 percent of wages. The Governor’s Executive Order waives the one-week unpaid waiting period, so the employee can collect DI benefits for the first week they are out of work. If eligible, the EDD processes and issues payments within a few weeks of receiving a claim.
B. Needed Caregiving
If the employee is unable to work because you are caring for an ill or quarantined family member with Coronavirus (certified by a medical professional), they can file a Paid Family Leave (PFL) claim with the EDD. 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 they are eligible, the EDD processes and issues payments within a few weeks of receiving a claim.
C. Reduction in Work Hours
If an employee’s child’s school is closed, and the employee has to miss work to be there for the child, the employee may be eligible for Unemployment Insurance benefits. Eligibility considerations include situations where you have no other care options and where you are unable to continue working your normal hours remotely. The employee can file an Unemployment Insurance claim and the EDD representatives will decide if the employee is eligible.
If your employer has reduced hours or shut down operations due to the virus, an employee 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 Coronavirus 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 eligible, the EDD processes and issues payments within a few weeks of receiving a claim.
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.
D. Tax Assistance
Employers experiencing a hardship as a result of COVID-19 may request up to a 60-day extension of time from the 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.
3. HEALTH AND SAFETY AT WORK
Workplace safety and health regulations in California require employers to protect workers exposed to airborne infectious diseases such as the coronavirus. Cal/OSHA enforces these regulations on employers to comply with these safety requirements and to provide workers information on how to protect themselves. Here are guidelines.
A. Employers Covered by ATD Standards
Cal/OSHA’s Aerosol Transmissible Diseases (ATD) standard requires protection for employees working at health care facilities, and other services and operations, including:
- Hospitals, skilled nursing facilities, clinics, medical offices, outpatient medical facilities, home health care, long-term health care facilities, hospices, medical outreach services, medical transport and emergency medical services
- Certain laboratories, public health services and police services that are reasonably anticipated to expose employees to an aerosol transmissible disease.
- Correctional facilities, homeless shelters, and drug treatment programs
- Any other locations when Cal/OSHA informs employers in writing that they must comply with the ATD Standard
To protect workers and prevent exposure to the virus, employers must develop and maintain the required programs and plans for their facility or operation. Cal/OSHA recommends the interim guidance, educational materials and model programs and plans below be reviewed with an employer’s existing procedures to ensure that workers are protected.
Some of the key requirements in a written ATD exposure control plan applicable to protecting workers from the virus include, but are not limited to:
- A description of the source control measures to be implemented at the worksite, and the method of informing people entering the worksite of the source control measures. A source control measure is a procedure, engineering control, device or material that minimizes the spread of airborne particles from a possible infected individual.
- Procedures to identify, temporarily isolate, and move suspected cases to airborne infection isolation rooms or areas. These procedures must include methods to limit employee exposure to patients when they are not in an airborne infection isolation room or area.
- Procedures to communicate with employees and other employers regarding the suspected or confirmed infectious disease status of persons to whom employees are exposed in the course of their duties.
- Procedures the employer will use to ensure that there is an adequate supply of personal protective equipment and other equipment necessary to minimize employee exposure to airborne infectious diseases, in normal operations and in foreseeable emergencies.
- Procedures, including work practices, decontamination facilities, and appropriate personal protective equipment for surge events. Employers who have employees designated to provide services in surge conditions must have such procedures. A surge is a large and rapid increase in the number of cases. Surge procedures extend beyond direct patient care and include tasks such as laboratory studies and epidemiological investigations.
- Procedures to identify potential employee exposures, evaluate each exposure incident, determine the cause, determine which employees had a significant exposure, provide medical follow-up for exposed employees, and revise existing procedures to prevent future incidents.
All employers covered by the ATD Standard must provide comprehensive training to employees on their initial placement and at least annually. Employers must also provide a training update to employees regarding changes to their ATD exposure control plan that apply to Coronavirus. This update must specifically address such items as:
- Signs and symptoms of COVID-19.
- Modes of transmission of COVID-19. and source control procedures.
- Tasks and activities that may expose the employee to COVID-19.
- Use and limitations of methods to prevent or reduce exposure to COVID-19 including appropriate engineering and work practice controls, decontamination and disinfection procedures, and use of personal and respiratory protective equipment.
- Selection of personal protective equipment, its uses and limitations, and the types, proper use, location, removal, handling, cleaning, decontamination and disposal.
- Proper use of respirators.
Employers must use feasible engineering and work practice controls to minimize employee exposures to airborne infectious disease. Examples of engineering controls include airborne infection isolation rooms or areas, exhaust ventilation, air filtration, and air disinfection. Work practice controls include procedures for safely moving patients through the operation or facility, hand washing, personal protective equipment (PPE) donning and doffing procedures, the use of anterooms, as well as cleaning and disinfecting contaminated surfaces, PPE, articles and linens.
Finally, personal protective equipment (PPE) for workers providing care to suspected and confirmed Coronavirus cases include gloves, gowns or coveralls, eye protection and respiratory protection. Respirators must be labeled as certified by NIOSH and must have filters that remove at least 95 percent of airborne particles or more. Although ATC may not apply to a construction site, many of these provisions could be applied to a construction site, particularly where there are activities such as cutting granite.
B. Employers Not Covered by ATD Standards
These guidelines are not for health care employers and employees covered in the prior section. This interim guidance provides employers and workers with information for preventing exposure to the coronavirus. Employers and employees should review their own health and safety procedures as well as the recommendations and standards detailed below to ensure workers are protected.
Cal/OSHA recommends employers not covered by the ATD Standard follow recommendations from the Centers for Disease Control and Prevention (CDC). These guidelines include infection prevention measures which include:
- Actively encouraging sick employees to stay home
- Sending employees with acute respiratory illness symptoms home immediately
- Providing information and training to employees on:
- Cough and sneeze etiquette
- Hand hygiene
- Avoiding close contact with sick persons
- Avoiding touching eyes, nose, and mouth with unwashed hands
- Avoiding sharing personal items with co-workers (i.e. dishes, cups, utensils, towels)
- Providing tissues, no-touch disposal trash cans and hand sanitizer for use by employees
- Performing routine environmental cleaning of shared workplace equipment and furniture (disinfection beyond routine cleaning is not recommended)
The CDC guidelines also contain recommendations for creating an infectious disease outbreak response plan to be followed in the event of an outbreak. These response plans include one or more of the following:
- Allowing flexible worksites, telecommuting and flexible work hours to increase physical distance among employees
- Using other methods of minimizing exposure between employees, and between employees and the public
- Postponing or canceling large work-related meetings or events
Regardless of the risk, all employers must provide washing facilities that have an adequate supply of suitable cleansing agents, water and single-use towels or blowers. This may include sites outside of the home office if the risk of exposure is increased.
Personal Protective Devices requires employers to conduct a hazard assessment, when feasible and needed, to determine if hazards are present in the workplace that necessitate the use of PPE. If an employer identifies the virus as a workplace hazard, they must select and provide exposed employees with properly fitting PPE that will protect employees.
4. CONCLUDING THOUGHTS
We are all traveling down this unknown road together. We need to help and support each other to get through this unexpected event. We are here to help you through these difficult times. I will keep you updated as needed. Please do not hesitate to contact us with any questions or concerns that you may have.
We will get through this.
Jeffrey M. Epstein
Lubka & White LLP
Telephone: (626) 301-0700