COVID-19 Federal & CA State Leave Laws

**I attended a webinar on 3/20/2020 presented by HR Network and this is a transcript of the information regarding the Coronavirus COVID-19 and some HR laws at of 3/18/2020… Melissa Tompkins**

Review of HR 6201: Families First Coronavirus Response Act

CA Shelter in place

8 Week social contract

• All Californians to remain at home unless they have need to leave for “essential” activities and work
• “Essential activities” – groceries, food pick-up, prescriptions/health care, banking, hardware supplies, care for a friend or relative, walking the dog and taking outdoor exercise such as walking, running, or hiking. When people do go out, they should practice social distancing.
• Those whose work is considered “essential” are also permitted to leave the house to continue their work. Essential businesses included health care facilities, grocery stores, and other food markets, banks, media services, hardware stores, laundromats, and delivery services among others.

Who is still open?

• Businesses that provide essential services will remain open. They include grocery stores, farmers markets, food banks, convenience stores, pharmacies, and other health care providers, new outlets, banks and laundromats. Restaurants can still provide take-out food and make deliveries. Businesses involved in constructions and essential infrastructure such as plumbers, electricians, gas stations, auto repair shops, and hardware stores are also exempt. Public transportation and utilities will continue to provide service.

Enforcement

• Misdemeanor penalties apply but the governor said he hopes law enforcement won’t need to enforce the order and believes social pressure will encourage people to do the right thing.

Emergency Paid Leave Benefits

• Creates a new federal emergency paid leave benefit program
• Eligible workers will receive a benefit for a month (up to three months) in which they must take 14 or more days of leave from their work due to qualifying COVID-19 related reasons.
• Days when an individual receives pay from their employer (regular wages, sick pay, or other paid time off) or unemployment compensation do not count as leave days for the purposes of this benefit.

Specifications of Emergency Paid Leave

Administered by the Social Security Administration (SSA)

• Benefit amount: 2/3 of the individual’s average month earning (based on the most recent year of wages or self-employment income for which records are readily available), up to a cap of $4000
• Program and benefit period: The benefits will be available for leave that occurs from January 19, 2020 (the date of the first US COVID-19 diagnosis) through one year after the bill’s enactment.
• Retroactive benefits: Benefits can be paid retroactively, and applications can be filed up to 6 months after enactment.
• Application: Applications will be taken online, by phone, or my mail. Payments in most case will be issues electronically.

*Benefits paid out until the program are not subject to federal income taxes

Paid Sick Days

• Requires all employers to allow employees to gradually accrue seven days of paid sick leave. **I am waiting on more information to confirm this***
  • ***UPDATED 3/23/20, in the original bill, it was proposed to have employers allow 7 days of paid sick leave, that did not make it to the final bill approved on 3/18/20 and is not required****
• Requires all employers to provide an additional 14 days (10 business days) of paid sick leave available immediately at the beginning of a public health emergency included the current coronavirus crisis

*Effective immediately upon date of enactment.

UPDATED 3/25/2020 Effective Date Changed to 4/1/2020

Why didn’t big business have to participate? Because they didn’t want the taxpayer to have to pay the bill.

Application/Eligibility

Applies to private employers with fewer than 500 employees

• Eligible employees
  • Full-time employees: who work 80 hours or more in a two-week period
  • Part-time employees: the # of hours that they work, on average, over a two-week period.

Paid Sick Leave Protected Absences

1. Employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 (All of California that is taken off work)
2. Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19
3. To obtain a medical diagnosis if the employee has symptoms of COVID-19
4. Employee is caring for an individual who is subject to an order describe in subparagraph 1 or 2 above.
5. To care for the employee’s child if the child’s school or place of care have been closed, or the childcare provided of the child is unavailable, provided that all deductions made on written orders of the employee may be aggregated and shown as one item to do so, due to COVID-19 precautions.
6. Employee is experiencing any other substantially similar condition specified by the “secretary of Health & Human Services”, in consultation with the Secretary of the Treasury & the Secretary of Labor. (don’t know exactly what that is yet)
7. Also allows for construction workers to receive sick pay based on hours they work for multiple contractors.

Amount Paid

• Sick time for reasons 1,2,& 3, is at the employee’s regular rate of pay, based on the number of hours the employee others would be scheduled to work, capped at $511 per day and $5110 total. (quarantined or diagnosed)
• Sick time sued for reasons 4,5, & 6, however is at two-thirds of the employees’ regular rate of pay, capped at $200 per day and $2,000 totally. (care for another has similar conditions)

Additional Rules

• Emergency Paid Sick Time is in addition to any sick time the employer already provides.
• The Employer may not change existing sick leave policy
  • What about employer with PTO policy and not vacation & sick?
    • Need to make sure that at least 3 days of that PTO program be allowed to be used as sick leave and subject to the sick leave rules.
  • All employees, with at least 30 days of employment, immediately qualify.
  • The Employer cannot require the employees to use other forms of sick leave.
  • Expires end of 2020. Employer not required to pay for unused Paid Sick Time.

Coordination with Other Programs

• Protection of existing benefit rights. Existing benefit rights are protected, including any right to State or local paid leave benefits, and great benefits are allowed including under a contract, collective bargaining agreement, or other employment benefit program.
• Reduction based on receipt of state or private paid leave. Benefit amounts are offset (reduced) dollar-for-dollar by the amount of any stats or private paid leave benefit the individual also receives.
• No effect on eligibility for SSI: Benefits paid under this program to not count as income or resources for the Supplement Security Income (SSI) programs.

Emergency Family & Medical Leave Expansion (EFMLA) 

• Applies to employers with few than 500 employees.
  • Note, small business with fewer than 50 employees are exempt from Emergency FMLA I the required leave would jeopardize the viability of their business.
• Up to 12 weeks of leave (first 10 days unpaid, then 2/3 off regular rate of pay for the number of hours the employee would typically work during the leave period – up to $200/day, or $10,000 total)
• Covered leave available to those with a “qualifying need related to a public health emergency” (includes employees who are “Unable to work or telework”) because of thee need to care for the employees’ child (under 18) if the child’s school or daycare has been closed, or the child’s care provider is unavailable to do so due to a public health emergency).

 Emergency FMLA Expansion (1 of 3)

The Families First Act also temporarily provides emergency FMLA leave for a “qualified need related to public health emergency”.

• Coverage & Eligibility: For specified COVID-19 related reasons, the current employee threshold for coverage is changed from covering employees with 50 or more employees to covering any workplace with few than 500 employees. Employee eligibility requirements for emergency FMLA area also lowered. Instead of working 1,250 hours I the preceding 12 months, the emergency RMLA provisions apply to any employee who has been employer for at least 30 days.
• Reason for leave: The employee may only take emergency FMLA leave when the employee is unable to work (or telework/remote work) due to a new to care for the employee’s child under 18 years of age if the school or place of care has been closed or the child care provider is unavailable due to a public health emergency, meaning an emergency related to COVID-19.

Emergency FMLA Expansion (2 of 3) 

• Paid leave: Unlike standard FMLA leave, a significant portion of the emergency FMLA leave must be paid. The first 100 days of emergency FMLA leave may be unpaid. Employees may elect to substitute vacation, personal leave or paid sick leave during that time.
• After the first 10 days, the employer must pay full-time employees at a rate of no less than 2/3 of their regular rate of pay for the hours normally scheduled. Employees who work part-time irregular schedules are entitled to a rate based on the average number of hours worked over a six-month period. If they haven’t worked that long, then they are entitled to the average number of hours per day that the employee would normally be scheduled to work. Paid leave under this law is capped at $200 per day and $10,000 in the aggregate, per individual.

 Emergency FMLA Expansion (3 of 3) 

• Job Protection: As with standard FMLA leave, the emergency leave is protected, meaning an employer must return the employee to the same or equivalent position upon their return. But small employers with few than 25 employees are exempted if the position does not exist due to economic conditions or other changes in operating conditions that affect employment and are caused by a public health emergency. However, the employee must make reasonable efforts to restore the employee to an equivalent position and if those efforts fail, the employer must make reasonable efforts to contact the employee if an equivalent position opens with in year.

*NOTE: The DOL must issue guidelines by April 2^nd to assist employer in calculating how much paid leave their employees should get.

UPDATE 3/25/20 Effective Date was changed to April 1st 2020

*Guidelines might change on this in the future

Small Business Reimbursement

Reimburses small business with 50 employees or less for the costs of providing the 14 days of additional paid sick leave used by employees during a public health emergency.

How will businesses and nonprofit afford to pay workers on leave?

• They will be reimbursed for the full amount within three months, in the form of a payroll tax credit. (The Trump administration has said it will advance the money earlier for employers that can’t wait that long). The reimbursement will also cover thee employer’s contribution to health insurance premiums during the leave. It’s full refundable, which means that if the amount that employers pay works who take leave is larger than what they own in taxes, the government will send them a check for the remainder. (That goes for self-employed and gig economy workers, too).

 Small Business Exemption & Tax Credits

• Small Business Exemption: The Secretary of Labor is authorized to issue regulations to exclude certain health care providers and emergency responders and to exempt small business with fewer than 50 employees from its requirements when they would jeopardize the viability of the business.
• Tax Credits: Like paid sick leave, employers will be provided with quarterly tax credits for paid family leave, allowing credits against the employer’s portion of Social Security Taxes. Employers are entitled to credit for qualified family leave wages, up to $200 per day for each individual and $10,000 total with respect to all calendar quarters.

*The Emergency FMLA program will take effect on April 2^nd and remain in effect until December 31^st, 2020. 

Other Methods of Income Replacement 

• Paid Leave Bank
• Vacation & PTO
• State and local paid sick leave

Can I force employees to use paid vacation or sick leave?

• Federal DOL FAQ: “A private employer may direct exempt staff to take vacation or debit their sick leave bank account in the case of an office closure.”
  • https://www.dol.gov/agencies/whd/flsa/pandemic
  • CA Labor Commissioner FAQ’s. “The employer cannot require that the worker use paid sick leave, that is the worker’s choice. https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.html
  • However, as a practical matter, most employees will elect to use vacation or PTO, so they receive pay
    • Employers can require them to use their PTO or deny them the option of using their PTO.

Leave information

• Disability Insurance – If employee is unable to work due to a medical quarantine or illness related to COVID-19 (certified by a medical professional).
• Paid Family Leave – If unable to work because you are caring for an ill or quarantined family member with COVID-19 (certified by a medical professional).
  • This can also be used if has childcare issues
• Unemployment – If you have lost your job or have had your hours reduced for reasons related to the COVID-19
• Paid sick leave – If you or a family member are sick or for preventative care when civil authorities recommend quarantine.
• Workers comp – If you are unable to do your usual job because you were exposed to and contracted the COVID-19 during the regular course of your work, you may be eligible for worker’s compensation benefits.
• Can file claim if they contract the virus directly from the business, might be difficult to prove though.
• Can only claim workers comp or paid leave, cannot do both together.

 California Unemployment Insurance Benefit Programs

• Work Share – 2 employees share one job, 20-60% reduction in hours/pay
  • Employees file unemployment claim
  • Employer is required to provide a notice of reduced earnings (can get notice
    • Each week Employer would need to provide unemployment office with a copy of payroll records to show reduction in pay
  • Partial benefits – 50% more reduction in pay/hours
    • Provide employees with a notice of reduced earnings work
      • Each week Employer would need to provide unemployment office with a copy of payroll records to show reduction in pay
    • Full Benefits
      • Furlough – stays on payroll, to be called back, not required to look for other work.
      • Layoff – terminated from payroll, required to look for other work (may be waived).

Deductions from Exempt Employee Salaries 

• What if an exempt employee has no vacation or sick leave to use and works a portion of the week?
• If exempt employee is directed to stay home; Exempt employees do not need to be paid for any complete “workweek” in which they perform no work.
  • If they have vacation or sick leave, you can supplement days they didn’t work with vacation or sick leave.
  • But if they work any part of the week and they don’t have vacation or sick to supplement it, you must pay them for the whole week.
• If exempt employees absent themselves for personal reasons and have exhausted their sick leave balance, the employer can make deductions from salary for full day absences, but not partial day absences.

*Note, be explicit that employees shouldn’t perform any work from home, even checking email is considered work.  

Reduction to Exempt Employee Salaries

• Reduction in pay & hours to avoid layoffs
• Across-the-board salary reduction (can’t pick and choose, must be everyone)
• Prospective only
  • Meaning, the next pay period, can’t do is the last pay period started previously.

*In a series of opinion letters, the federal DOL & CA DLSE has advised that temporary reductions to exempt employees’ salaries and hours do not violate the salary basis test when done during sever economic conditions to avoid layoffs.

Expense Reimbursement for Remote Workers

Are we required to reimburse for home internet and other expenses associated with remote work?

• CA – Employer is obligated to reimburse for home internet, or other expenses associated with remote work.
• Federal –
  • Employers may not require employees who are covered by the FLSA to pay or reimburse the employer for {additional costs that employees incur if they work from home}, if doing so reduces the employee’s earning below the required minimum wage or overtime compensation.
  • Employers can supplement pay based on what it is you are providing them.
    • Suggest for employer come up with a fair dollar amount of what expense is and provided them with that.
      • It is taxable income

Warn Act Overview 

Federal and state WARN Acts generally require 60 days’ advanced notice of plant closings, mass layoffs, and similar events, counting employment losses toward the thresholds.

CA Warn – Covered establishment is any “industrial or commercial facility” the employees or has employed 75 or more person over the last year, triggered by termination, mass layoff, and relocation of 50 or more employees.

*How to count remote employees?

• Fed Warn – general counted as being employed in a single site
• CA Warn – unanswered, follow federal. 

California WARN Act Suspended For COVID-19 Emergency

Warn Act – Failure to provide the 60 days’ notice exposes employees to liability for up to 60 days back pay and the value of benefits for all laid off employees plus additional civil penalties, which can be recovered under the Private Attorneys General Act (PAGA)

*Governor Newsome relaxed the CA Warn Notice requirements, but employers MUST provide UI info & give a Warn Notice as soon as possible.

• Still need to notify the department the CA DOL

OSHA Guidance & Requirements

• OSHA Guidance on Preparing Workplaces for COVID
• OSHA 3990-03 2020 – can be downloaded
• OSHA 3990-03 Booklet

Recordable Illness

• COVID-19 is a “recordable” illness, *if infection occurs at the workplace*
  • Must be a “confirmed” case of COVID-19
  • Workplace infection may be difficult to prove
• If not obvious, employer must “evaluate the employee’s work duties & environment to decide whether or not one or more events or exposures in the work environment either causes or contributed.” to the illness.

Employees Refusing to Work

What if my employee is afraid to come to work, or wants to stay home with family?

• CA & OSHA Regs – cannot retaliate against an employee who has a good faith safety concern.
• Unpaid time off, not eligible for UI benefits. May allow employee to use vacation

Requiring Dr.’s Notes

Employee says, “I’m fine (after 14 days of quarantine), can I come back to work?

• Employer can require a doctor’s note but considering situation may be difficult to get.
• Recommendation is that employers look for signs that employee may be ill
  • Fever
  • Shortness of breath
  • Cough
• If employee exhibits any of those signs it is okay for employer to not allow them to come back to work.
• EEOC has made it legal to for the employer to take employee’s temperatures before walking through the door.

Information presented by

Audrianne Adams Lee, SPHR, President HR Network

HR NETWORK 3/20/2020 11:AM PST

https://www.hrnetworkinc.com/

Summary from HR Network Coronavirus Presentation 3/20/2020 11:00 am PST

Important Links:

https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

//www.edd.ca.gov/about_edd/coronavirus-

CDC Coronavirus COVID-19

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

https://www.eeoc.gov/

https://www.labor.ca.gov/coronavirus2019/

https://cvma.net/corona-virus-update/

https://www.avma.org/resources-tools/animal-health-and-welfare/covid-19

https://www.sba.gov/page/coronavirus-covid-19-small-business-guidance-loan-resources