17 Mar

Answers to Frequently Asked Questions by California Employers About Their Obligations to Employees During the COVID-19 Pandemic

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Andrews Lagasse Branch + Bell, LLP has assembled a taskforce of attorneys in our offices to address the many employment-related challenges employers are facing in the wake of the novel coronavirus (COVID-19). This pandemic has presented an unprecedented situation leaving most organizations with questions including: how to maintain a safe work environment; what obligations they owe to employees; and how to answer employee questions regarding leave, pay and benefit programs.

Following are answers to frequently asked questions. However, you can contact your ALBB attorney or any member of our Taskforce (see below) with specific questions.

What are an employer’s obligations regarding workplace health and safety?

For information on protecting employees from COVID-19, California employers should follow the Interim Guidance for Businesses and Employers posted on the Center for Disease Control and Prevention (CDC) website. 

These preventative measures include:

  • Encourage sick employees, or employees with sick family members to stay home.
  • Immediately send employees home if they display fever, cough, and shortness of breath
  • Perform routine cleaning of frequently touched surfaces. 
  • Emphasizing respiratory etiquette and hand hygiene, such as: 
    • Cover nose and mouth when coughing or sneezing.
    • Frequently wash hands with soap and water, or use of alcohol-based hand sanitizers.
    • Avoid touching eyes, nose, mouth, or face.
    • Stop shaking hands.

CDC guidelines also recommend:

  • Allowing flexible worksites, telecommuting and flexible work hours to increase physical distance between employees and avoiding large meetings and events.
  • Minimizing travel.

As discussed below, certain counties and cities have also issued emergency orders directing additional precautions.

If an employee appears ill, can an employer ask them to go home?

Employers can require employees to go home if they are displaying visible symptoms of COVID-19 including fever, cough, and shortness of breath.1

To prevent discrimination claims, employers should develop a neutral policy requiring all employees with symptoms of COVID-19 to stay home for the incubation period of 14 days or until cleared by a medical provider.

Employers should avoid treating employees differently based on a disability, race, national origin or associations with specific nationalities, as differential treatment can lead to harassment and discrimination claims under the American with Disabilities Act (ADA) and California’s Fair Employment Housing Act (FEHA).

For example, employees of Asian descent cannot be questioned about their illness, if other similarly-situated employees are not questioned. Employers should also avoid asking employees to share specific details about their illness. Too many questions could violate employee privacy rights and protections. For example, questioning employees about their symptoms could elicit responses that include private health information.

Can an employer require employees to work from home or to stay home and not perform work?

Employers can ask employees to work remotely, as long as the employer’s policy is not discriminatory. For example, an employer can implement a blanket policy that requires all employees, or all employees in a particular department, to work from home. Employers can also implement a narrower policy based on a direct threat (i.e., requiring all employees who have been exposed to a person infected with COVID-19, to work from home). However, an employer cannot require only employees of a protected class to remain home (i.e., employees of a certain nationality or over the age of 50).

Employers are encouraged to allow employees to work from home. However, if working from home is not a possibility for your business, employers can require employees to remain home and not work. Employers may also temporarily shut down operations. 

Can an employer ask employees to disclose their travel plans? And if so, can they ask employees to alter their travel plans or impose self-quarantine when they return from their trip?

Employers can ask employees to voluntarily disclose their personal travel plans, but cannot require disclosure. Employers should use caution if they ask employees about travel, as improper assumptions could expose them to claims of invasion of privacy, harassment or discrimination. For example, employers cannot ask only employees of Chinese or Italian descent about their travel.

Employers can impose travel limitations for its own business travel, but cannot prohibit employees from traveling for personal reasons.
If an employer learns that an employee has traveled, the employer may require the employee to remain home for the 14-day incubation period, as long as the employer’s policy is not discriminatory. For example, an employer may implement a narrow policy requiring all employees who have traveled to a region designated to be avoided for nonessential travel by the CDC as Warning Level 3 to remain home for the 14-day incubation period, or until cleared by a medical provider.2 Employers may also implement a broad policy requiring all employees who have traveled on a commercial airplane to remain home for the 14-day incubation period or until cleared by a medical provider. Any travel policy cannot single people out because of their membership in a protected class.

Must employers pay employees who stay home when work is otherwise available – such as when civil authorities require quarantine or when the employee stays home to care for a child whose school or place of care is closed?

Under California’s wage and hour laws, hourly employees do not need not be paid for time they do not work.  Exempt employees must be paid their regular salary for any week in which they perform work, but if they remain off work for a full workweek, they need not be paid. 

As discussed below, employees may be able to use federal Emergency Paid Sick Leave, Expanded  Family Medical Leave, California Paid Sick Leave, or other employer provided paid sick leave, vacation, or other paid time off in place of unpaid leave.3 Also as discussed below, in some circumstances, employees may also qualify for wage replacement benefits from the State of California’s Employment Development Department in the form of Disability Insurance, Unemployment Insurance, or Workers Compensation Insurance.  

Must employers provide paid sick leave to employees who stay home for COVID-19 related reasons when work is otherwise available?

The emergency Families First Coronavirus Response Act (FFCRA), effective April 1, 2020, includes an “Emergency Paid Sick Leave Act” that requires private employers with fewer than 500 employees and public employers with at least one employee to provide employees with Emergency Paid Sick Leave if the employee is unable to work (or telework) due to a need for leave because of  any of the following COVID-19 related reasons:

  • The employee is subject to a Federal, State or local quarantine or isolation order because of COVID-19;
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • The employee is caring for an individual who is subject to a Federal, State or local quarantine or isolation order because of COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  • The employee is caring for a child of such employee if the school or place of care of the child has been closed or the child care provider is not available, because of COVID-19 precautions.4

[Note that Emergency Paid Sick Leave is not available if an employer does not have work for the employee, furloughs the employee, or closes its business, whether the employer closes for lack of business or because it is required to close pursuant to a Federal, State, or local directive or Stay at Home Order.5

A full-time employee is entitled to 80 hours of Emergency Paid Sick Leave. A part-time employee is entitled to the number of hours equal to the average number of hours the employee works over a two-week period. Emergency Paid Sick Leave must be paid at the employee’s regular rate of pay, but is capped at $511 per day and $5110 in the aggregate for an employee’s own COVID-19 related leave, or $200 per day and $2,000 in the aggregate to care for a family member or because of a school or child care closure related to COVID-19.

Find out more about this new law in our article: Families First Coronavirus Response Act and its Emergency Paid Sick Leave Act.

As set forth below, after exhausting Emergency Paid Sick Leave, employees may also elect to use California Paid Sick Leave for COVID-19 related absences.

If a business reduces hours, closes, or furloughs employees because of a government issued stay-at-home order, are the employees entitled to Emergency Paid Sick Leave under the Families First Coronavirus Response Act (FFCRA)?

No. Guidance issued by the Department of Labor clarifies that employees whose hours have been reduced, who have been furloughed, or whose worksites have been closed, are not entitled to Emergency Paid Sick Leave under the FFCRA, but they are entitled to unemployment benefits. If an employer does not have work for employees, reduces hours, closes its business, or furloughs its employees, whether for lack of business or because closure is required by a Federal, State, or local directive or stay-at-home order, there is no “need for leave,” so the employee is not entitled to Emergency Paid Sick Leave.

Can an employer require an employee to exhaust California state paid sick leave if they are not working?

An employee may choose to first use the Federal Emergency Paid Sick Leave for the uses described above. An employer may not require an employee to use other paid leave provided by the employer, including California Paid Sick Leave before the employee uses the Federal Emergency Paid Sick Leave for the COVID-19 related absences identified above.

Once  employees exhausts their Federal Emergency Paid Sick Leave, employees may choose to use their California Paid Sick Leave, but employers cannot require the use of California Paid Sick Leave during a 14-day quarantine period or as preventative care  to care for a child because of a school closure.

Can an employer require an employee to exhaust employer-provided and accrued vacation or other paid time off if they are not working?

Generally, an employer may require employees to use accrued vacation or paid time off to cover absences from work, planned or unplanned, and without regard to whether the employee wishes to use the accrued vacation.6 However, a Memorandum from the California Labor Commissioner indicates that the employer must provide “reasonable notice” before employer-mandated usage of vacation, and it states that “reasonable notice” should be “as far in advance as possible but generally no less than one fiscal quarter or 90 days, whichever is greater.7 The Labor Commissioner’s opinion provides guidance, but it is not binding on courts. An argument can also be made that any notice an employer provides now is “reasonable” as COVID-19 is a new and developing situation, and a greater notice period was impossible.

If an employer is considering requiring employees to use vacation time during any 14-day quarantine period, employers should immediately circulate an email or memorandum explaining this policy.  The explanation could be part of a broader email to all employees about COVID-19.   

Do employees qualify for California State Disability Insurance benefits if they get COVID-19 or are quarantined for being exposed to COVID-19 and cannot work? 

Yes. According to the LWDA, employees are immediately eligible for Unemployment Insurance benefits if their employer either reduces hours or shuts down operations due to COVID-19; the typical seven-day waiting period was waived. 8 Employees should apply for benefits through the California Employment Development Department.

Do employees qualify for California State Paid Family Leave Insurance benefits if they cannot work because they are caring for an ill or quarantined family member with COVID-19?

Yes. Employees who are unable to work and lose wages because they are caring for an ill or quarantined family member with COVID-19 (certified by a medical professional) may be eligible for up to 8 weeks of Paid Family Leave Insurance benefits.9Employees should apply for benefits through the California Employment Development Department.

Do employees qualify for California State Unemployment Insurance benefits if their employer reduces their work hours or shuts down operations due to COVID-19?

Yes. According to the LWDA, employees are eligible for Unemployment Insurance benefits if their employer either reduces hours or shuts down operations due to COVID-19.10Employees should apply for benefits through the California Employment Development Department.

Must employers provide time off to individual employees whose child’s school or day care closes for reasons related to COVID-19, when work is otherwise available?

Yes, under the new Federal Emergency Paid Sick Leave Act and the new Expanded Family and Medical Leave Act (FMLA), employers with less than 500 employees (or public employers with one employee) must provide Federal Emergency Paid Sick Leave or Expanded FMLA Leave to employees who are unable to work because they must care for a child whose school or place of care is closed because of COVID-19.11

Find out more about these new laws in our articles: Families First Coronavirus Response Act and its Emergency Paid Sick Leave Act and FMLA Temporarily Expanded for Coronavirus.

Additionally, under California law, employers with 25 or more employees must provide up to 40 hours of unpaid leave for specific school-related emergencies, such a school closure, pursuant to Labor Code section 230.8.  Employees may elect or may be required to use accrued vacation or other paid time off in place of unpaid leave, as discussed above. Also as discussed above, employees may elect to use available paid sick leave for the preventive care of their child.

In California, employers with fewer than 25 employees are encouraged, but not required, to provide unpaid time off to parents who must stay home to care for a child because of a school closure, unless the employee elects to use paid sick leave, vacation or other paid time off during that time. Employers are also encouraged to allow employees to work remotely, if feasible.

May employers require employees to report to work?

Employers are encouraged to allow employees to work from home (telework), if possible. However, if working from home is not a possibility for your business, and your business is deemed “Essential,” generally employers can require employees to report to work. To determine if your business is “Essential” see our article: Guidance for California Employers: Is Your Business “Essential” or “Non-Essential” and What Does that Mean for Operations?

If employees must report to work, employers should enforce social distancing and provide increased sanitation standards. In fact, some localities such as Northern California and San Diego have issued Orders requiring these precautionary measures.12

Are employers required to provide face masks or other safety equipment to employees?

If employees are required to report to work, employers must take reasonable steps to provide a safe and healthful workplace. All employers should take the preventive measures discussed above to prevent the outbreak of COVID-19. However, the provision of safety equipment like face masks would likely not be required for most employers, absent a direct threat of exposure to COVID-19.13 If a direct threat of exposure was present, employers would likely be required to provide face masks and other safety equipment to employees, especially those who interact with the public. The employer would also be required to provide basic instructions for using the safety equipment.

As an alternative to providing face masks or other safety equipment, employers can meet their obligation to take reasonable steps to provide a safe and healthful place of employment by allowing employees to work remotely to the extent possible, or temporarily closing their business.

Can employers take the body temperature of employees during the COVID-19 pandemic?

According to new guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC), during the COVID-19 pandemic, employers may measure employees’ body temperature to determine whether the employee has a fever, which is a known symptom of COVID-119. However, employers should be aware that some people with COVID-19 do not have a fever. As set forth above, employers can require employees with fevers to go home and stay home for the incubation period of 14 days or until cleared by a medical provider.

Are employees who get COVID-19 while at work eligible for worker’s compensation benefits?

Yes. According to the LWDA, employees unable to do their usual work because they were exposed to and contracted COVID-19 during their regular course of work, may be eligible for workers’ compensation benefits.14

If an employee stays home sick, can an employer request a doctor’s note before allowing the employee to return to work?

Employers cannot request a doctor’s note from employees who ask to use their available California Paid Sick leave. Once that leave is exhausted, normally employers can request a doctor’s note. However, the CDC discourages employers from requiring doctor’s notes, so as not to take away from time that doctors could be responding to more pressing health needs. In addition, certain local Orders, including an order issued by San Diego require that all businesses suspend any policy or procedure requiring doctor verification for sick or other leave approval.15

Are employers required to issue a final paycheck if they temporarily shut down or furlough employees?

Unfortunately, this is a somewhat gray area of the law. Labor Code section 201 requires employers to issue final paychecks to employees at the time of “discharge.” The DLSE has suggested that a lay-off without a certain return date within a normal pay period may constitute a “discharge” under Labor Code section 201. However, the DLSE has not provided clear guidance on whether a furlough with the clear intention of a continued employment relationship could actually be considered a “discharge” under Labor Code section 201. Given this uncertainty, the most conservative approach for employers would be to treat furloughs as “discharges” and pay employees their final paychecks (including accrued vacation/PTO) immediately upon placing employees on furlough.

That said, we believe an argument can be made that where an employer plans to return an employee to work after the furlough, the employer is not “discharging” the employee, within the plain meaning of that term. Given the ambiguity in the law, we also believe a strong argument can be made that no waiting time penalties are owed if an employer fails to provide a final paycheck at the time of placing employees on furlough, because the failure to pay owed wages was not “willful.” 16 Please contact your ALBB attorney or a member of our COVID-19 Taskforce if you would like to further discuss options in this regard.

Are employers required to issue a final paycheck if they lay off employees?

Yes. Unlike furloughs, which typically have an expectation of return at some future date, lay-offs typically have no expectation of return (even if there is a possibility of return). The California Department of Labor Standards Enforcement (DLSE) has interpreted Labor Code section 201 to mean that if an employee is laid off without a specific return date, the wages earned up to and including the lay-off date are due and payable in accordance with Section 201.17 This guidance is generally relied on to require that final paychecks be issued in lay-off situations where a return to employment is not expected.  Thus, if an employer lays off its employees as a result of COVID-19 with no expected return date, the employer would be required to provide the employee a Notice of Change in Relationship and issue a final paycheck, including accrued vacation and PTO.

Are Employers required to give notice under the Federal WARN and/or CA WARN Acts in the event of shut down or lay-offs because of the COVID-19 pandemic?

Possibly.  Whether an employer is required to give notice under federal WARN and/or CA WARN Acts prior to a shut down or lay-off depends on whether: (i) the employer is a covered employer; and (ii) whether the shut down or lay-off is sufficient to trigger the federal WARN or CA WARN Acts. The federal WARN Act only applies to shut downs and lay-offs that exceed six months. However, the CA WARN Act may apply to short-term shut downs and mass lay-offs.  The coverage determination is often a detailed analysis with which ALBB can assist. 

Generally, when the WARN Acts apply, employers must give 60 days’ notice to affected employees to avoid back pay, penalties and attorneys’ fees. However, he federal WARN Act has an exception that would apply during the COVID-19 Pandemic for “unforeseeable business circumstances” that are the result of “sudden, dramatic and unexpected actions or conditions outside of the employer’s control.  A new California Executive Order essentially adopts the “unforeseen business circumstances” exception and suspends certain aspects of the CA –WARN Act (60-day notice, liability for damages and for the civil penalty) to better accommodate covered employers who have to shut down, relocate or order a mass lay-off as a result of COVID-10.

Despite these exceptions, employers must still provide as much notice as possible, a brief statement of the basis for reducing the notification period, and the information required by the WARN and CA WARN Act. The notice must still be provided to the affected employees and the same entities employers are typically required to notify (unions representing affected employees; the California Employment Development Department (EDD), the Local Workforce Development board; and the chief elected official). The notice should also include a statement that employees may be eligible for Unemployment Insurance and direct employees to the EDD.

For more information on employers’ obligations to employees during the COVID-19 pandemic, suggested policies, or other employment issues, please contact your ALBB attorney or any member of our COVID-19 taskforce: Jennifer Branch (jbranch@albblaw.com), Kelly Folger (kfolger@albblaw.com), Melissa A. Lewis (mlewis@albblaw.com), Carrie Battilega Luetzow (cbluetzow@albblaw.com), Lara P. Besser (lbesser@albblaw.com) and Jessica Yang (jyang@albblaw.com). 

Endnotes:

  1. The U.S. Equal Employment Opportunity Commission (EEOC) suggests that requiring employees who show symptoms to stay home would be permitted under the ADA if the World Health Organization or the CDC declares the coronavirus a pandemic, which it did on March 11, 2020.
  2. Currently, the following countries are designated to be avoided for nonessential travel by the CDC as Warning Level 3: South Korea, Iran, China, Europe, United Kingdom and Ireland and Venezuela. Given the ever-changing situation, employers should check the CDC website for the most current list of travel notices at https://wwwnc.cdc.gov/travel/notices.
  3. See, California Department of Industrial Relations website at https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm
  4. Families First Coronavirus Response Act (FFCRA) § 5102(a).
  5. See Families First Coronavirus Response Act: Questions and Answers, U.S. Department of Labor,  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.
  6. Suastez v Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 778, n7.
  7. DLSE Memorandum from Donna M. Dell, Labor Commissioner (May 31, 2005).
  8. See the LWDA website at: https://www.labor.ca.gov/coronavirus2019/#chart; https://www.gov.ca.gov/wp-content/uploads/2020/03/3.12.20-EO-N-25-20-COVID-19.pdf.
  9. Id.
  10. Id.
  11. Again, Emergency Paid Sick Leave is not available if an employer does not have work for the employee, furloughs the employee, or closes its business, whether the employer closes for lack of business or because it is required to close pursuant to a Federal, State, or local directive or Stay at Home Order. (See Families First Coronavirus Response Act: Questions and Answers, U.S. Department of Labor,  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.)
  12. See https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiology/HealthOfficerOrderCOVID19.pdf; https://www.smcgov.org/sites/smcgov.org/files/HO%20Order%20Shelter%20in%20Place%2020200316.pdf
  13. As of March 16, 2020, the CDC says the immediate risk of exposure to COVID-19 is still low for most employees in America, but as the outbreak expands, that risk will increase. People in places where ongoing community spread COVID-19 has been reported are at elevated risk of exposure. Healthcare workers, close contacts of persons with COVID-19, and travelers returning from affected international locations where community spread is occurring also are at elevated risk of exposure. (https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html#risk-assessment)
  14. See the LWDA website at: https://www.labor.ca.gov/coronavirus2019/#chart
  15. https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiology/HealthOfficerOrderCOVID19.pdf
  16. Labor Code § 203(a).
  17. See Campos v. EDD (1982) 132 Cal.App.3d 961; see also O.L. 1993.05.04 and O.L . 1996.05.30).