California Employer Guidelines on COVID-19 Part 1

This is the first of two blogs that we wanted to share with our clients and friends of the firm to help with the next few weeks of “lock downs” and “closures.”

The spread of the coronavirus (“COVID-19”) remains a significant concern in the workplace.  Employers are faced with difficult questions on how to handle various employment-related issues.  To assist you in responding to your employees’ and customers’ questions and concerns, please review and implement the following best practices.

  1. Can an employee request and use California Paid Sick Leave due to COVID-19 illness?

Yes.  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.

  1. If an employee exhausts sick leave, can the employee use another form of paid leave?

Yes, if an employee does not qualify to use paid sick leave, or has exhausted sick leave, other leave may be available (i.e., short term disability insurance, which is administered by the California Employer Development Department). 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.

  1. Can an employer require an employee who is quarantined to exhaust paid sick leave?

No, the employer cannot.  Ultimately, the employee decides whether to use paid sick leave.  Should the employee decide to use paid sick leave, the employer can require the employee to 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.

  1. What if an employee cannot come into work due to his/her child's school or day care closure for reasons related to COVID-19?

Rights on this issue depend on the size of the employer.  Employees at worksites with 25 or more employees may be provided up to 40 hours of leave (unpaid) 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).  However, employers may require employees to use their vacation or paid time off benefits before they are allowed to take unpaid leave (if applicable), but cannot mandate that employees use paid sick leave.

  1. What if an employee requests to wear some type of mask as an accommodation?

Ultimately, this is up to the employer.  The Centers for Disease Control and Prevention (CDC)  does not recommend that people who are well wear some type of mask to protect themselves from respiratory disease, including COVID-19. Rather, the CDC recommends that surgical masks be used by people who show symptoms of COVID-19.  If an employee shows symptoms or has been diagnosed with COVID-19, the CDC recommends that the employee be separated from other employees and sent home immediately, thus negating the need for a mask as an accommodation.

  1. If one of our employees is quarantined, what information can we share with our employees?

If an employee is confirmed to have COVID-19, employers should inform the remaining workforce of their possible exposure to COVID-19.  Employers must not disclose the identity of the quarantined employee.

  1. Can an employer require an employee to provide information about recent travel to countries considered to be high-risk for exposure to COVID-19?

Yes.  Employers can request that employees inform them of recent travels to countries considered by the CDC to be high-risk areas for exposure to COVID-19.  However, employees have a right to medical privacy, so employers must refrain from inquiring into areas of medical privacy.

  1. Is an employee entitled to compensation for reporting to work and being sent home?

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 (depending on the scheduled length of shift).

For example, a worker who reports to work for an eight-hour shift and only works for one hour must receive four hours of pay, one for the hour worked and three as reporting time pay so that the worker receives pay for at least half of the expected eight-hour shift.

  1. If a state of emergency is declared, does reporting time apply?

Reporting time pay does not apply when operations cannot commence or continue when recommended by civil authorities.  However, reporting time pay does apply under a state of emergency, unless the state of emergency includes a recommendation to cease operations.

  1. If an employee is exempt, are they entitled to a full week’s salary for work interruptions due to a shutdown of operations?

Federal regulations require that employers pay an exempt employee performing any work during a week their full weekly salary if they do not work the full week because the employer failed to make work available.  However, 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.

Federal regulations allow partial day deductions from an employee's sick leave bank so that the employee is paid for their sick time by using their accrued sick leave. If an exempt employee has not yet accrued any sick leave or has exhausted all of their sick leave balance, there can be no salary deduction for a partial day absence.

Deductions from salary may also be made if the exempt employee is absent from work for a full day or more for personal reasons other than sickness and accident, so long as work was available for the employee, had they chosen to work.

  1. If I am a party in an action filed with the Labor Commissioner’s Office, can I seek an accommodation to participate remotely due to COVID-19?

Yes. Requests to participate remotely should be emailed to the district office in which the claim has been filed. These requests will be evaluated on a case-by-case basis.

  1. What national origin/race discrimination issues should employers be aware of?

Title VII and the Fair Employment and Housing Act (FEHA) prohibit discrimination based on race, color, national origin, and other protected classifications.  The CDC has advised in this context:  “[t]o prevent stigma and discrimination in the workplace … do not make determinations of risk based on race or country of origin, and be sure to maintain confidentiality of people with confirmed COVID-19.”  Employers should be careful not to exclude any person from work or work-related activities, as well as from any type of customer or client interaction, based purely on race or national origin, without evidence of illness or recent travel to a high-risk area.  Further, employers should ensure that any communicable disease or travel policies do not implicate anti-discrimination laws, not only based on race, color, age, pregnancy, or national origin, but also on disability or other prohibited bases.

  1. What are the employer’s obligations to prevent harassment of those suspected of being infected?

Employers must take steps to prevent discrimination and harassment against individuals who are disabled or perceived as disabled because they are exhibiting symptoms suggestive of having contracted COVID-19.  In order to accomplish this, and as stated earlier, employers should ensure the confidentiality of all employees’ medical information to prevent harassment.  Employers should consider reminding employees of anti-harassment and discrimination company policies.  Employers should also work to tamp down rumors about employees related to employee health or travel. Employers should promptly respond to and investigate complaints of harassment or bullying in the workplace.

  1. What can employers do to minimize risk of transmission?

The key to minimize risk of transmission is to avoid exposure.  Employers should inform employees to:

  • Wash their hands often with soap and water for at least 20 seconds.
  • Avoid touching their eyes, nose, and mouth with unwashed hands.
  • Avoid close contact with others, especially those who are sick.
  • Refrain from shaking hands with others for the time being.
  • Cover their cough or sneeze with a tissue, then throw the tissue in the trash.
  • Clean and disinfect frequently touched objects and surfaces.
  • To stay home when they are sick.

Employers should do the following:

  • Ensure that employees have ample facilities to wash their hands and that third-party cleaning/custodial schedules are accelerated.
  • Evaluate/update work from home policies (Garcia & Gurney, ALC can provide assistance with this issue).
  • Consider staggering employee starting and departing times, along with lunch and break periods, to minimize overcrowding in common areas such as elevators, break rooms, etc.
  • Designate a single point of contact for employees for all concerns that arise relating to health and safety.
  • Stay up to date with information from the CDC and the World Health Organization (WHO) regarding additional precautions.

To help stop the spread of COVID-19, many employers are asking/allowing employees to work from home.  To ensure employers are protected, employers should distribute work from home policies to such employees.  It is important that these policies are detailed and updated with the most current laws, compliance with the law, and have a manageable remote working policy. 

For more information, please call us at 925-468-0400 or contact us online today.