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COVID-19 LAW FOR EMPLOYERS AND EMPLOYEES (3-25-20)

Posted by Lilit (Lily) Solmer | Mar 25, 2020 | 2 Comments

During these uncertain times, we are standing by to guide you about the impact of Coronavirus (Covid-19) laws on how to follow the best health policies to protect yourself and the workforce.  Please feel free to contact us for legal advice: 714.794.8558 or 818.928.5529.

Here is a list of the top FAQs that we hope are helpful to you. 

Does the business need to implement telework (“work from home”)?

Governor Newsom issued Executive Order N-33-20, ordering all residents to stay at home “except as needed to maintain continuity of operations of the federal infrastructure sectors.” The CDC and Cal-Osha have also released industry specific information pertaining to various businesses like health-care workers.

You should check to see what order applies to your worksite (location), nature of business, and how to comply with the order.

Additionally, the California Fair Employment and Housing Act (“FEHA”) applies to all employees with 5 or more employees. Under this law, an employer is required to provide a reasonable accommodation for any disabled employee who requests an accommodation. The reasonable accommodation can be in the form of a paid/unpaid medical leave or an accommodation to work from home.  Be mindful that a disability under the FEHA is a very broad standard.  The FMLA and CFRA leave also provide up to 12 weeks of leave, but apply to those employers with 50 or more employees.

If employees work from home, must they continue to be paid?

Yes, employees must be paid for all hours worked and be mindful of laws regulating overtime and compliance with meal and rest period requirements.  If there is a reduction in the hours worked at home, employees can apply for benefits.

Do employees need to be laid off to receive lost wages?

No, there is no requirement that employees be fired or laid off in order to be paid for lost wages.  But, layoffs and terminations are appropriate where business needs or the circumstances warrant.  Employers should consider anti-discrimination and anti-retaliation issues if they intend to lay off or terminate an employee for taking sick leave due to COVID-19 or exercising other protected rights.

What paid benefits can employees receive related to COVID-19?

The federal and state governments are implementing various relief plans to help people. On Tuesday, March 24th, lawmakers have reportedly reached a stimulus package deal for relief for families, individuals, the unemployed, and for businesses. The language of the bill has yet to be released.

In the meantime, employees can apply for Unemployment Insurance if: (1) their hours are reduced because of the stay-at-home quarantine and you do not pay them (or partially pay them); or (2) they were separated during the quarantine; or (3) they are in quarantine because of a MD or state or local health officer.  If they are sick and can't work due to having or being exposed to COVID-19 and have supporting MD documents, they can apply for Disability Insurance. (See also: Unable to work due to having or being exposed to COVID-19?

School

Employees may also be eligible for UI if they miss work to care for a child. School leave is separately allowed under the Labor Code for employers with 25 or more employees (up to 40 hours per year).

Self-Employed and Independent Contractors

All of this is different for the self-employed and independent contractors. But, be mindful of AB-5 legislation which effectively makes it difficult to classify someone as an independent contractor.  Disability Insurance and unemployment insurance are only available to those independent contractors/self-employed who have enrolled in elective coverage. Family member employees may also be exempt from certain EDD benefits.

Other Paid Leaves

California Paid Family leave, which is similarly administered through the EDD if an employee is unable to work because they are caring for an ill or quarantined family member and provides up to 6 weeks of benefits.

Federal Families First Coronavirus Response Act goes into effect April 3rd, and applies to all businesses who have fewer than 500 employees. It requires businesses to provide employees with paid sick or family leave for qualifying reasons related to COVID-19, but only if the employees are unable to work from the office or from home.  Certain exclusions may be obtained from the Secretary of Labor under narrow circumstances for employers with < 50 employees.

Essentially, under this law employees are eligible for:

  • Two weeks (up to 80 hours) of paid sick time at the employee's regular rate of pay where the employee is unable to work (or telework) because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or 
  • Two weeks (up to 80 hours) of paid sick time at two-thirds the employee's regular rate of pay because the employee is unable to work (or telework) to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
  • Up to an additional 10 weeks of paid family leave at two-thirds the employee's regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work (or telework) due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Qualifying Reasons for Leave: Under this new law, an employee qualifies for paid sick time if the employee is unable to work (or telework) due to a need for leave because the employee:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

The length of the leave depends on the reasons and whether the employee is full-time or part-time. For reasons (1)-(4) and (6): A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period. For reason (5): A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Calculation of Pay under Families First: For leave reasons (1), (2), or (3): employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

For leave reasons (4) or (6): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

For leave reason (5): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period).

Guidance regarding the notice requirements for this leave entitlement is scheduled to be issued this week.  Continue to check DOL.

Do the policies in the handbook or California paid sick leave still need to be honored?

Yes, any sick leave policies and state sick pay are benefits that are separate from, and in addition to, the Families First law requirements.  Be mindful of local sick leave requirements that are more restrictive than the state standard.  Paid sick leave in California varies depending on the city where an employee works and the employer's policies regarding PTO (if any). For example, if an employee works in the City of Los Angeles, the employee should receive at least 48 hours of sick leave per year provided at the start of each year of employment/calendar year/12-month period OR one (1) hour of paid sick leave for every thirty (30) hours worked.

Also, while FMLA and CFRA leave provide 12 weeks of unpaid leave to employers with at least 50 employees, the Families First law provides emergency paid sick and family leave without excluding smaller businesses.

How will paying for sick leave under Families First work? 

In essence, employers will be obligated to pay out sick pay in exchange for credit from the IRS for payroll taxes.  The IRS has promised to issue guidance in the upcoming week on how this process will work.  In the meantime, you can look here.

Do workers' compensation benefits apply to employees who telework?

Yes, if the injuries arise out of or in the course of employment, and this would include any coronavirus exposure.  This may lead to obvious problems of proof.  So, as a practical matter, employers and employees should maintain detailed documentation regarding any illness prevention measures and potential that have been taken, records of requests for leave and symptoms, and coronavirus exposure analysis.  Employers should review their workers' compensation policies and speak to their brokers about the risks in light of the coronavirus pandemic and the obligations to give timely notice for any injured worked.

About the Author

Lilit (Lily) Solmer

Orange County Employment Law Attorney Attorney Solmer provides aggressive representation in litigating a wide spectrum of claims before state and federal courts and administrative agencies. She is caring and compassionate as an advocate, fierce and skilled in litigation. No one will work harder ...

Comments

Pat Chadderon Reply

Posted Oct 29, 2020 at 20:27:39

I’m over 70 don’t have covid but my job said I can come do disenfecting and my doctor said I’m high risk they say I need to resign ? I’m not sure because I have unemployment? I need advice as I’m high risk

Lilit (Lily) Solmer Reply

Posted Oct 30, 2020 at 08:44:27

Dear Pat: Thank you for your commment. Please call our firm to discuss 714-794-8558. Thank you. – Lily

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