COVID-19 (Cornoavirus) was first identified in Wuhan, China in late 2019 and has since spread across the globe. The rapid response of federal, state and local governments has created an adverse impact on local businesses. At Davis & Wojcik APLC, our goal is to help businesses survive COVID-19.
California’s Occupational Safety and Health Act of 1973 (“Cal-OSHA”) requires that employers provide “safe and healthful working conditions for all California working men and women.” (Labor Code § 6300). This includes protecting workers exposed to airborne infectious diseases such as the coronavirus.
While the odds of being infected by the COVID-19 coronavirus is extremely low, employers should remain cautious. If an employee exhibits signs of infection, such as a fever or difficulty in breathing, employers should encourage them to seek a medical evaluation. The Equal Employment Opportunity Commission (EEOC) has confirmed that employers may advise workers to go home if the symptoms are akin to the COVID-19 coronavirus or the flu.
Expanded Sick Time Laws
Currently, California law requires that employers provide 24 hours (or 3 days) of paid sick leave per year for full-time employees, which can be used beginning on the 90th day of employment. In response to COVID-19, Congress passed The Emergency Paid Sick Leave Act, which requires employers to provide eligible full-time employees with up to 80 hours of leave, with full pay. These employees must not be able to work or telework due to a quarantine order, a health care provider’s advisement to self-quarantine, or to seek a diagnosis when experiencing COVID-19 symptoms. Eligible part-time employees are entitled to fully paid time off on a pro rata basis, calculated on the average hours such employees work in a 2-week period.
The Emergency Paid Sick Leave Act also allows for paid time off to care for family members. However, the available 80 hours of paid time off must be paid at 2/3 of the employee’s regular pay. This will allow the employee to care for an individual who is subject to a quarantine order or a health care provider’s advisement to self-quarantine, or to care for a minor child whose school or child care provider is closed or unavailable due to COVID-19. The same pro rata basis and 2/3 pay applies to part time employees.
This is going to have a large impact on the bottom line since businesses will now be required to pay employees for time not being worked. It is important to note that leave under the Emergency Paid Sick Leave Act is subject to monetary caps on the leave ($511/day and $5,100 aggregate for personal illness leave reasons, and $200/day and $2,000 aggregate for care provider leave).
The Family and Medical Leave Act (FMLA) and been around since 1993 and provides up to 12 weeks of protected leave for medical conditions or to care for a family member. However, to qualify for FMLA, the employee must have worked for 1250 hours over a 12-month period. It also only applies to employers with over 50 employees within a 75-mile radius.
In response to COVID-19, the federal government has passed the Emergency Medical Leave Expansion Act, which amends FMLA and broadens protection leave coverage. The EFMLEA applies to all employers with fewer than 500 employees. To be eligible, employees must have been employed for at least 30 calendar days.
The EFMLEA permits eligible full- and part-time employees with up to 12 weeks of job-protected leave if they are unable to work or telework to take care of their minor children in the event of a school closure or if their child care provider is unavailable due to COVID-19.
Employers may not require employees to exhaust other types of leave before taking leave under the EPSLA.
Work from Home Policies
Many businesses are able to remain in operation by providing work-from-home opportunities. However, employers should be aware that California’s strict wage and hour laws continue to govern the employment relationship even if work is performed remotely. This includes overtime, meal breaks and reimbursement for necessary business expenses. Employers are encouraged to develop and adhere to an update work from home policy.
Administering Layoffs and Furloughs
These are dire circumstances, and many employers may be required to reduce their workforce through either layoffs or furloughs. A furlough is “a temporary layoff from work.” Furloughed have an expectation of returning to their job.
There are many laws governing layoffs and furloughs that remain applicable even under these unique circumstances. For example, under the Older Workers Benefit Protection Act, the employer may be required to share the ages and job titles of all the employees being terminated and retained when laying off two or more employees over age 40. For mass layoffs and plant closures, the WARN Act requires most employers with 100 or more employees to provide notification 60 calendar days in advance.
Notice to Employees
Under Labor Code section 2810.5(b), employers are required to provide notice to employees of changes to the law that impact their wages or sick time. Therefore, all employers are encouraged to send notice to employees of the foregoing changes to the law.
Daniel Thompson is an employment lawyer with Davis & Wojcik APLC, a Southern California based law firm with offices located in Temecula and Hemet. He is also the author of Land of Liability: A Guide for California Employers. He can be reached at (951) 652-9000.