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CORONAVIRUS IN THE WORKPLACE

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As the world seeks to respond to the COVID-19 virus outbreak, employers and employees have many concerns. Some of the basic and easiest suggestions and recommendations for the workplace, and elsewhere are:  1) Social distancing; 2) Working from home; 3) Maintaining a strict regimen of cleaning the workplace and washing your hands with soap and water; and 4) Postponing or cancelling meetings and group gatherings, opting for email, video or telephone conferences instead. In response to a variety of questions that have arisen, below is a brief outline of Best Practices:

Employee Illness and Absences:
  • Sending An Employee Home Due to Illness: If an employee reports to work exhibiting signs of any illness including fever, coughing, shortness of breath or other breathing concerns, the employee can and should be sent home immediately and they should not return until they no longer exhibit any of the symptoms. If the employee poses a direct threat to the workplace, the employee must be sent home.
  • Doctor’s Notes: Encourage employees to seek medical attention.  If the employee is absent more than 3 days you can request a doctor’s note for the employee to return to work; however, due to the current crisis, many doctor’s offices may be too busy to see patients on short notice.
  • Asking Questions & Employee Health Privacy Considerations: State and federal law impose legal obligations on employers to keep medical information confidential, maintain it separately from the general personnel file, and limit access to those with a need to know.   
  • Employers may take their employees’ temperature. The CDC and the WHO have stated that measuring an employee’s body temperature is a medical examination. However, because the community spread of COVID-19 has been acknowledged, employers may measure employees’ body temperature. Employers should be aware that some people with COVID-19 do not have a fever.
  • Working from Home: If the job duties are such that an employee can perform the duties of their position effectively, an employer may make arrangements with their employees to work from home.  If the employee is non-exempt, they must maintain a daily time record of the actual time worked, and they must continue to comply with meal and break obligations.
  • Asking About An Absence: Employers can ask their employees about the reason for their absence and if they have traveled to any place where they might have been exposed to the COVID-19 virus.
  • Providing Reasonable Accommodation: Employers must provide an employee with a reasonable accommodation if they are disabled.  A reasonable accommodation for someone infected or who may have been exposed and needs to be in quarantine could be a work-from-home arrangement.
Paid Sick Leave: Paying Employees During Absence Due to Illness of Employee or a Family Member:
  • Non Exempt Employees: If an employee is absent due to an illness of the employee or an immediate family member as defined in the Paid Sick Leave law, they can use available paid sick leave.  If they have no available paid sick leave, the time off would be without pay, but they may be able to apply for SDI – see below.
    • Until the State or Federal government determine whether any additional mandatory paid sick leave benefits must be offered, any supplemental paid sick leave beyond what is already mandated would be up to the employer.
  • Exempt Employees: Exempt employees must be paid their full salary if they work at all during any workweek. If the exempt employee has any available paid sick leave, you can deduct the time off from their sick leave allotment.  If the exempt employee is absent for an entire workweek and performs no work, the exempt employee’s salary may be reduced for the weeks not worked.
Employee Benefits: EDD, UI, Paid Family Leave (PFL) and State Disability Insurance (SDI)
  • Sick or Quarantined & SDI: If an employee is unable to work due to having or being exposed to COVID-19 (certified by a medical professional), the employee can file a Disability Insurance (DI) claim.
  • Caregiving & PFL: If an employee is unable to work because the employee is caring for an ill or quarantined family member with COVID-19 (certified by a medical professional), the employee can file a Paid Family Leave (PFL) claim.
  • School Closure & PFL: Employees at worksites with 25 or more employees may also be provided up to 40 hours of leave per year for specific school-related emergencies, such as the closure of a child’s school or day care by civil authorities (see Labor Code section 230.8).
  • Reduced Work Hours & UI Benefits: If employees’ hours have been reduced or the business shuts down operations due to COVID-19, employees can file an Unemployment Insurance (UI) claim. 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.

The EDD has provided the following additional information for Employers:

  • 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 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) or contact your local America’s Job Center of California.
  • 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. 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

The EDD has published the following information on their website.  Click on the links below to visit the EDD website.

https://www.edd.ca.gov/about_edd/coronavirus-2019.htm

https://www.edd.ca.gov/about_edd/coronavirus-2019/faqs.htm

LABOR COMMISSIONER – DLSE

The Division of Labor Standards Enforcement (DLSE) or Labor Commissioner has published a Frequently Asked Questions (FAQ) regarding the laws that may be relevant to COVID19.

Click here for the link:  https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm

A summary of the information is set forth below:

1.   Can an employee use California Paid Sick Leave due to COVID-19 illness?
  • Yes. 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 their right to take paid sick leave, or an employer may allow paid sick leave for preventative care. For example, where there has been exposure to COVID-19 or where the worker has traveled to a high risk area.  If the employee has paid sick leave available, the employer must provide such leave and compensate the employee.
2.  If an employee exhausts sick leave, can other paid leave be used?
  • Yes, 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.
  • Given the evolving nature of this unprecedented health emergency, if an employee chooses not to use available paid sick leave, or has no other paid leave available, employees and employers should discuss what unpaid or paid leave options may be available.
3.   Can an employer require a worker who is quarantined to exhaust paid sick leave?
  • The employer cannot require that the worker use paid sick leave; that is the worker’s choice. If the worker decides to use paid sick leave, the employer can require they take a minimum of two hours of paid sick leave. The determination of how much paid sick leave will be used is up to the employee.
4.  What options do I have if my child’s school or day care closes for reasons related to COVID-19?
  • Employees should discuss their options with their employers. There may be paid sick leave or other paid leave that is available to employees. Employees at worksites with 25 or more employees may also be provided up to 40 hours of leave per year for specific school-related emergencies, such as the closure of a child’s school or day care by civil authorities (see Labor Code section 230.8).
  • Employers may require employees use their vacation or paid time off benefits before they are allowed to take unpaid leave but cannot mandate that employees use paid sick leave. A parent may choose to use any available paid sick leave to be with their child as preventative care.
5.  If an employee is exempt, are they entitled to a full week’s salary for work interruptions due to a shutdown of operations?
  • An exempt employee who performs no work at all during a week may have their weekly salary reduced.  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.

Below is a summary of information from various sources to provide guidance and responses to some of these inquiries along with links to various agencies for you or your employees to refer to for updated information.

CENTER FOR DISEASE CONTROL &  PREVENTION

The CDC posted their Interim Guidance for Businesses and Employers on their website and a summary of the information is set forth below.

Also, anyone can sign up for weekly email updates from the CDC by going to their website. Updates are available on CDC’s web page at www.cdc.gov/coronavirus/covid19.

CDC website Interim Guidance – Click on the links below:

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

CDC Poster: Employer should display the poster published by the Centers for Disease Control.   Click on the link below for the poster:

https://files.constantcontact.com/fd50738e401/3d6ddc09-dc92-498f-84ec-81c01665829b.pdf

Cal Osha Interim Guidelines:

https://www.dir.ca.gov/dosh/coronavirus/General-Industry.html

The EEOC’s has issued guidance on Pandemic Preparedness In The Workplace And The Americans With Disabilities Act.  Click on the following link:  https://www.eeoc.gov/facts/pandemic_flu.html

OSHA, CAL-OSHA & WORKPLACE HEALTH & SAFETY

OSHA has deemed COVID-19 a recordable illness when a worker is infected on the job and record-keeping requirements apply. OSHA has released a document that provides guidance on preparing workplaces for COVID-19. Click on the links below:

https://www.osha.gov/Publications/OSHA3990.pdf

Cal/OSHA has established guidance on requirements to Protect Workers from the coronavirus.  Click on the link below.

https://www.dir.ca.gov/dosh/coronavirus/Health-Care-General-Industry.html

U.S. DEPT OF LABOR

The U.S. Department of Labor has resources to help workers and employers prepare for the COVID-19 virus (also known as novel coronavirus).

Click Here: https://www.dol.gov/coronavirus

INSURANCE CONSIDERATIONS – BUSINESS LOSSES DUE TO COVID-19

If your business faces a loss of income due to COVID-19, you should contact your insurance broker and review your insurance policies as some policies may have Business Income/ Loss coverage. You should review the policy coverage section for more information and also review the endorsements to see if there are any exclusions like bacteria or virus exclusions.

As more or new information becomes available, we will seek to provide further guidance.  If you have any specific questions, please do not hesitate to contact our office.

This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2020.