Mitigating the Coronavirus Impact on the Workplace - Employer Obligations and Government Benefits
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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