On March 19, 2020, Governor Gavin Newsom issued Executive Order N-33-20 (“Order”), which effectively imposed a statewide shutdown of non-essential business and governmental operations.  This Special Bulletin was updated on April 6 to reflect the most current guidance and orders.

The analysis provided in this Bulletin relies on an interpretation of the term “essential” used as a modifier in orders, statutes and regulations to imply the negative, and that not all things are essential.

In order to comply with the Order and ensure the continuity of essential operations, including the provision of critical public services, public employers must determine the essential function of the agency and which employees are necessary to carry out such function. These decisions may be complicated by competing and, at times, conflicting directives from other governmental authorities, including those which dictate which employees are required to report to work and which must stay home.

The purpose of this Bulletin is to provide guidance to public employers faced with these complex questions in order to assist them in navigating the requirements of the Governor’s Order and reconciling the requirements in that Order with other lawful orders.

This Bulletin also intends to provide a methodology by which employers may determine which of their employees are essential to their operations, so that employers may instruct non-essential employees to stay home from work in compliance with the Order’s stay home requirement for non-essential employees.

Executive Order N-33-20 and Essential Infrastructure

Governor Newsom’s Executive Order N-33-20 provides that, in order to protect public health, all individuals living in California must stay in their home or place of residence unless needed to maintain continuity of operations of critical infrastructure sectors.

The Order then identifies sixteen (16) critical infrastructure sectors whose employees, due to their performance of essential functions are necessary to the continued operation of the infrastructure and industries specified, are exempted from the requirement to stay home from work.

The Order relies on and refers to guidance provided by the Department of Homeland Security’s (“DHS”) Cyber and Infrastructure Security Agency (“CISA”) concerning which of our nation’s industrial sectors are critically important to the nation’s response to COVID-19 emergency. CISA expressly provides that the covered sectors “have a special responsibility in these times to continue operations.” The guidance continues: “[p]romoting the ability of such workers to continue to work during periods of community restriction, access management, social distancing, or closure orders/directives is crucial to community resilience and continuity of essential functions.”

Government Facilities’ Importance Lies in the Provision of Public Services

One of the sectors covered by and exempted from the stay home requirement in Governor Newsom’s Order is “government facilities.”

CISA’s sector-specific plan for the government facilities sector expressly provides that the importance of government facilities derive not just from a facility’s built structure, but from the services provided to the public at or from those facilities and the individuals “who perform essential functions, possess tactical, operational or strategic knowledge” of such facilities and services (p. 5). Furthermore, CISA identifies types of work necessary to ensure continuity of government operations that extend well beyond the ensuring the continuity of building functions and maintaining building access control and physical security. Based on this information, the State Public Health Officer, operating with authority delegated by the Governor, issued guidance concerning the type of workers that public agencies may decide to deem “essential” for the purpose of carrying out their functions.

Therefore, in order to comply with stay home directives included Executive Order N-33-20, each public agency must, as a preliminary matter, determine the essential functions that it provides to the public and that it must continue to provide during the emergency response to COVID-19. According to CISA, “[essential] functions are activities that are conducted to accomplish an organization’s mission and serve its stakeholders.” (p. 61.) A public agency may reasonably conclude that a certain department or division is not necessary to the agency accomplishing its mission and serve its function in the community.

While the functions provided by cities, counties, special districts, and public school and community college districts, differ, determining the public agency’s essential function is a necessary and preliminary determination that must precede deciding which of the agency’s employees are essential.

Reconciling Order N-33-20 with Orders Issued by Cities and Counties

Prior to the issuance of the Governor Newsom’s Order on March 19, 2020, numerous cities and counties across the state had issued public health orders recommending or requiring community restrictions, access management, social distancing, or closure orders/directives in order to limit the spread of COVID-19. Below is a list of and links to certain County orders. Note that this list may not be comprehensive. Public agencies should consult with local County officials to identify any local orders to which the agency may be subject.

Several of these orders recommend or require that public employees or certain groups of public employees remain at home and away from work. Therefore, certain legally binding local orders, or portions thereof, may conflict with the Governor’s Order that non-essential employees remain at home.

Most local orders that restrict the operation of business and government provide exemptions for essential business and government operations such that a local agency can likely reconcile a local order with the requirements under the Governor’s Order.

However, where a local order imposes more stringent restrictions on who may return to work than are provided for in Order N-33-20, a public agency that is subject to both lawful orders should comply with the more stringent provisions of the local order. This will ensure that the public agency complies with both orders and directs employees deemed non-essential to remain at home and away from work. Similarly, if Order N-33-20 provides more stringent restrictions than a local order, agencies should follow those provisions of the Governor’s Order.

It is important to note that COVID-19 represents a statewide public health emergency and the coordinated response to the emergency, including the continued provision of essential government services, is an issue of clear and immediate statewide concern. Therefore, where there is a conflict between a lawful local order (e.g. county public health order), or provisions of such order, concerning personnel matters (e.g., stay home orders) and Order N-33-20, a public agency should attempt to reconcile the orders in such a way as to ensure the maximum staffing necessary to maintain continuity of operations. However, where the conflict between the orders is direct and irreconcilable the public agency must follow which ever order provides the more stringent restrictions on public employees returning to work.

Public agencies subject to previously issued local orders that adjusted staffing based on the specific requirements of such orders may need to revisit previous guidance.

Determination of Essential Employee Status

After a public agency determines the nature of the essential services that it provides to the public, and which are necessary to continue providing in order to assist with the response to the COVID-19 emergency, the agency must then determine the public employees who are necessary to provide such services.

CISA provides that “essential functions are used to identify supporting tasks and resources that must be included in the organization’s continuity planning process.” (p. 61.) While CISA describes essential services as tasks, it is clear that the individual employee who performs such services or tasks, are essential employees needed to maintain continuity of government operations.

For the purpose of complying with Executive Order N-33-20, an employer’s determination of essential employees must be grounded in the need to maintain continuity of functions deemed by the agency to be essential to the public. It must further provide flexibility for changing circumstances and needs, both in the community and to the emergency response. For example, a public agency may reasonably conclude that the services performed by an employee are essential, but that the employee may perform such work remotely, or that the service performed by groups of employees is essential, but that the agency does not need all the employees for every shift.

The public agency should be mindful not to make decisions arbitrarily or capriciously, and when circumstances permit should create a record explaining the justification for the determination.

These are complex questions and Liebert Cassidy Whitmore is here to provide specific guidance to your questions, including advice regarding employees who support or provide essential services.

What Does My Agency Need to Do Now?

Below is a checklist to assist your agency navigate these complex issues in a thoughtful and deliberate manner:

  1. As soon as possible, identify all employees whose continued service is necessary and required in order to continue provision of the essential function(s) provided by your agency. Refer to state guidance as necessary. Deem these employees to be “essential employees”;
  2. Identify all employees whose work is necessary to provide sufficient support and staffing to the “essential employee”. Deem all of these employees to be “essential employees”;
  3. If there is a close question between deeming an employee an “essential employee” and not, deem the employee an “essential employee”;
  4. The decision whether to deem an employee an “essential employee” is yours to make as the public agency and employer; it is not the employee’s decision; and
  5. Be deliberate and decisive, and, at all times, act in the public’s best interest in your decision making.

On April 1, 2020, the Department of Labor (“DOL”) issued temporary regulations concerning the paid leave provisions under the Families First Coronavirus Response Act (“FFCRA”), including the Emergency Paid Sick Leave Act (“EPSLA”) and Emergency Family and Medical Leave Expansion Act (“EFMLEA”). The new set of FFCRA regulations that are set forth at 29 C.F.R. §§ 826.10-826.160.

Below is a summary of the DOL’s comments with referenced page number in Finala Rule as well as the relevant Code of Federal Regulations (“C.F.R.”) citation. Note that the actual regulations begin on page 83 of the Final Rule:

  • Family and Medical Leave Act (“FMLA”) definitions prevail unless stated otherwise: “As a general matter, the FMLA definitions apply to the EFMLEA unless specific definitions were included in the EFMLEA.” (p.11; 29 C.F.R. § 826.10)
  • Telework interpretation for FLSA hours worked: “As a result, the Department has determined that an employer allowing such flexibility during the COVID-19 pandemic shall not be required to count as hours worked all time between the first and last principal activity performed by an employee teleworking for COVID-19 related reasons as hours worked.” (p. 13; 29 C.F.R. § 826.10)
  • Shelter in Place and Stay at Home Orders considered “quarantine or isolation order” if employee is unable to work or telework: “Quarantine or isolation orders include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.” (p. 14; 29 C.F.R. § 826.10, emphasis added)
  • Emergency Paid Sick Leave (“EPSL”) does not apply where the employer does not have work for the employee:

An employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee. This is because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order. For example, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment.

(p. 14; 29 C.F.R. § 826.20 subd. (a)(2))

  • EPSL under Reason #1 could apply if an employee is unable to “telework” because of extenuating circumstances that prevent such telework, such as a power outage during an applicable isolation or quarantine order: “[A]n employee subject to a quarantine or isolation order is able to telework, and therefore may not take paid sick leave, if (a) his or her employer has work for the employee to perform; (b) the employer permits the employee to perform that work from the location where the employee is being quarantined or isolated; and (c) there are no extenuating circumstances that prevent the employee from performing that work. For example, if a law firm permits its lawyers to work from home, a lawyer would not be prevented from working by a stay-at-home order, and thus may not take paid sick leave as a result of being subject to that order. In this circumstance, the lawyer is able to telework even if she is required to use her own computer instead of her employer’s computer. But, she would not be able to telework in the event of a power outage or similar extenuating circumstance and would therefore be eligible for paid sick leave during the period of the power outage or extenuating circumstance due to the quarantine or isolation order.” (p. 15; 29 C.F.R. § 826.20 subd. (a)(2))
  • EPSL under Reason #2 for an employee who cannot work or telework due to self-quarantine because of health care provider advice is further defined to mean: “the advice to self-quarantine must be based on the health care provider’s belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19. And, self-quarantining must prevent the employee from working.” (p. 15; 29 C.F.R. § 826.20 subd. (a)(3))
  • EPSL under Reason #3 for an employee who cannot work or telework due to experiencing symptoms of COVID-19 and seeking a medical diagnosis is “limited to the time the employee is unable to work because he or she is taking affirmative steps to obtain a medical diagnosis. Thus, an employee experiencing COVID-19 symptoms may take paid sick leave, for instance, for time spent making, waiting for, or attending an appointment for a test for COVID-19. But, the employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis.” COVID-19 symptoms are also described as “fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention (CDC).” This leave also does not apply if the employee is able to telework during this process. (p. 16; 29 C.F.R. § 826.20 subd. (a)(4))
  • EPSL under Reason #4 for an employee who cannot work or telework in order to care for an “individual” subject to reasons #1 and #2 is not unlimited and is qualified by the employee’s relationship to the individual for whom care is being provided. As noted by the DOL this reason “applies only if but for a need to care for an individual, the employee would be able to perform work for his or her employer. Accordingly, an employee caring for an individual may not take paid sick leave if the employer does not have work for him or her. Furthermore, if the employee must have a genuine need to care for the individual. Accordingly, § 826.20(a)(5) explains that paid sick leave may not be taken to care for someone with whom the employee has no personal relationship. Rather, the individual being cared for must be an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she self-quarantined or was quarantined.” (p. 17; 29 C.F.R. § 826.20 subd. (a)(5), emphasis added)
  • EPSL Reason #5 is for an employee who cannot work or telework because of the need to care for or a son or daughter who is out of school or childcare for a COVID-19 related reason. The DOL clarifies that this only applies “when the employee needs to, and actually is, caring for his or her child. Generally, an employee does not need to take such leave if another suitable individual—such as a co-parent, co-guardian, or the usual child care provider—is available to provide the care the employee’s child needs.” Therefore, if another parent or other person is available to provide child care, this leave can be denied. (p. 18; 29 C.F.R. § 826.20 subd. (a)(6))
  • FMLA public health emergency leave is also for an employee who cannot work or telework because of the need to care for a son or daughter who is not in school or childcare due to a COVID-19 related reason and will be interpreted the same as EPSL Reason #5. (p. 18; 29 C.F.R. § 826.20 subd. (b))
  • “Son or daughter” definition will be the same as the FMLA definition, which includes a son or daughter 18 years of age or older who is incapable of caring for himself or herself because of a mental or physical disability. (p. 19-20; 29 C.F.R. § 826.10).
  • Exempt employee’s use of intermittent leave under EPSL or FMLA public health emergency leave will not violate the salary basis test. (p. 20; 29 C.F.R. § 826.20 subd. (c))
  • Clarification of how to calculate EPSL paid time hours for part-time employee with varying work schedule. (pp. 20-24; 29 C.F.R. § 826.21)
  • Overview of how to provide paid leave at specified levels, and the application of an “average” regular rate of pay in providing such paid leave based on a weighted average calculation of weekly regular rates of pay over the past six (6) months or the duration of the employment where the employee has worked for less than six months. (pp. 24-25, 31-33; 29 C.F.R. §§ 826.24-826.25)
  • Explains application of FMLA public health emergency leave and interaction of EPSL and other leaves for the initial 10 days that are unpaid. Further, the regulations confirm that EPSL leave can run concurrently during these initial 10 days. (pp. 25, 28, 45-46; 29 C.F.R. § 826.60)
  • Clarification of how to provide FMLA public health emergency leave to employees with varying work schedules. (pp. 26-28; 29 C.F.R. § 826.24)
  • Because initial “10 days” language in FMLA public health emergency is not entirely compatible with existing “weeks” designation in FMLA and may cause unintended consequences for application of EPSL and FMLA public health emergency leave for employees with non-traditional work schedules, the DOL is using its regulatory authority to interpret the “10 days” unpaid period of such FMLA to be “two weeks.” (pp. 29-30; 29 C.F.R. § 826.24)
  • For FMLA public health emergency leave, an employer may require that an employee use accrued leave up to an employee’s full pay for the day if the employee otherwise takes this leave as unpaid. However, if an employee uses the paid EPSL during this time, the regulations appear to limit the employer’s authority to require the use of accrued leave because it is otherwise considered a paid leave. (pp. 31, 48; 29 C.F.R. § 826.24 subd. (d))
  • Clarifies that the requirement that employees must be employed for 30 calendar days prior to use of FMLA public health emergency leave means the employer had the employee “on its payroll for the thirty calendar days immediately prior to the day that the employee’s leave would begin.” In addition, an employee who is laid off on or after March 1, 2020 is also considered to have been employed for at least thirty calendar days, provided the employer rehires the employee on or before December 31, 2020 and the employee had been on the payroll for thirty or more of the sixty calendar days prior to the date the employee was laid off or terminated. (p. 34; 29 C.F.R. § 826.30 subd. (b)).
  • Clarifies that “health care providers” and “emergency responders” who are exempt from FFCRA are still entitled to use any earned or accrued leaves from their employers in accordance with established employer policies. (pp. 34-35)
  • Explains distinction between the use of the term “health care provider” for purposes of certification of leaves under FFCRA from the term “health care provider” who an employer may exempt from FFCRA coverage. (pp. 35-36; 29 C.F.R. § 826.30 subd. (c)(1)(i)-(ii))
  • With “emergency responder”, the regulation mirrors what DOL previously provided in its Q&A’s concerning FFCRA, but provides additional guidance for how to interpret this:

“The authority for employers to exempt emergency responders is reflective of a balance struck by the FFCRA. On the one hand, the FFCRA provides for paid sick leave and expanded family and medical leave so employees will not be forced to choose between their paychecks and the individual and public health measures necessary to combat COVID-19. On the other hand, providing paid sick leave or expanded family and medical leave does not come at the expense of fully staffing the necessary functions of society, including the functions of emergency responders. The FFRCA should be read to complement—and not detract from—the work being done on the front lines to treat COVID-19 patients, prevent the spread of COVID-19, and simultaneously keep Americans safe and with access to essential services. Therefore, the Department interprets “emergency responder” broadly.

The specific parameters of the Department’s definition of “emergency responder” derive from consultation of various statutory and regulatory definitions and from the consideration of input provided to the Department by various stakeholders and public officials. The Department endeavored to include those categories of employees who (1) interact with and aid individuals with physical or mental health issues, including those who are or may be suffering from COVID-19; (2) ensure the welfare and safety of our communities and of our Nation; (3) have specialized training relevant to emergency response; and (4) provide essential services relevant to the American people’s health and wellbeing. While the Department endeavored to identify these categories of workers, it was cognizant that no list could be fully inclusive or account for the differing needs of specific communities. Therefore, the definition allows for the highest official of a state or territory to identify other categories of emergency responders, as necessary.”

The importance of this clarification is that the DOL refers to “essential employees” as employees who may not necessarily be providing COVID-19 services, but are otherwise providing essential services for the “necessary functions of society.” This may provide public agencies with a stronger argument to apply “emergency responder” to a broader array of non-safety employees providing “essential services.” (pp. 36-37; 29 C.F.R. § 826.30 subd. (c)(2))

  • Clarification of employer determinations under FFCRA. (pp. 37-39; 29 C.F.R. § 826.40)
  • Explanation of “small employer exemption” to only apply to “private employers with fewer than 50 employees” if they meet certain criteria. This regulation confirms that such exemption would not apply to public agencies with fewer than 50 employees, including certain small cities and special districts. (pp. 39-41; 29 C.F.R. § 826.40 subd. (b))
  • Clarifies how EPSL or FMLA public health emergency leave may be taken intermittently, but that such usage is only permissible if the employee and the employer mutually agree to such intermittent use. An employee cannot otherwise unilaterally take intermittent FFCRA leave. Such intermittent leave is also restricted where the employee is not teleworking and still reports to their worksite except for limited purposes. (p. 43-45; 29 C.F.R. § 826.50)
  • Confirms that FMLA public health emergency leave is part of the existing 12 weeks of FMLA leave, and is not an additional 12 weeks on top of existing FMLA. If an employee has used up part or all of their FMLA in a current 12-month period, this will impact their ability to use FMLA public health emergency leave. (pp. 46-48; 29 C.F.R. § 826.70)
  • Clarifies that for the posting of the DOL notice an employer must post it “in a conspicuous place where employees or job applicants at a worksite may view it.” In the alternative, it can email the notice to employees or post it electronically on an employee information website. For employees who are not able to access the notice in the workplace, online, or via email, the employer can directly mail it. Employers do not have to provide a Notice of Eligibility and Rights and Responsibilities for or Designation Notices for FFCRA leaves. (pp. 48-49; 29 C.F.R. § 826.80).
  • Reasonable employee notice of need for FFCRA leaves may include an employer requiring an employee to provide notice as soon as is practicable after the first workday missed and to provide oral notice and required documentation consistent with the documentation required in the regulations. If an employee fails to provide proper notice procedures, the employer should give the employee the opportunity to comply before denying the request for leave. (pp. 49-50; 29 C.F.R. § 826.90).
  • Documentation required to support FFCRA leaves “must include a signed statement containing the following information: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.” An employee must also provide additional documentation depending on the COVID-19 qualifying reason for leave:

An employee requesting paid sick leave under § 826.20(a)(1)(i) must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject. An employee requesting paid sick leave under § 826.20(a)(1)(ii) must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons. An employee requesting paid sick leave under § 826.20(a)(1)(iv) to care for an individual must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request. An employee requesting to take paid sick leave under § 826.20(a)(1)(v) or expanded family and medical leave to care for his or her child must provide the following information: (1) the name of the child being care for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.

For leave taken under the FMLA for an employee’s own serious health condition related to COVID-19, or to care for the employee’s spouse, son, daughter, or parent with a serious health condition related to COVID-19, the normal FMLA certification requirements still apply. See 29 CFR 825.306.

In summary, an employer must require proper documentation in order to provide the FFCRA leave.  (pp. 50-51; 29 C.F.R. § 826.100)

  • Clarifies that health care coverage must be maintained on the same terms as if the employee did not take leave for any FFCRA leave reason. This requirement appears to match the existing FMLA regulations on this subject. (pp. 51-53; 29 C.F.R. § 826.110)
  • Summary of impact of FFCRA on multi-employer CBAs. (p. 53; 29 C.F.R. § 826.120)
  • Clarifies that right to reinstatement following FFCRA leave is the same as the existing FMLA standard and clarifies the different rules noted in the FFCRA for employers with less than 25 employees. (pp. 54-55; 29 C.F.R. § 826.130)
  • Explains that an employer is obligated to retain any documentation provided by an employee related to FFCRA leave for a period of four (4) years, regardless of whether the leave was granted or denied. If an employee provides an oral statement to support request for FFCRA leaves, the employer is still required to document and retain such information for that four (4) year period. In essence, employers must reduce the oral request to writing and maintain that record. Private employers with less than 50 employers who claim the small business exception are required to have an authorized officer document the criteria to satisfy the exception. (p. 56; 29 C.F.R. § 826.140)
  • Explains prohibited acts and enforcement of FFCRA. (pp. 56-58; 29 C.F.R. §§ 826.150-826.153)
  • Clarifies impact of FFCRA on existing laws, employer practices and CBA’s to note that paid leave provisions in FFCRA are in addition to existing policies and that an employee’s use of accrued leaves prior to the use of FFCRA leave shall have no impact on the ability to use FFCRA leave. Also clarifies that such leave is prospective from April 1, 2020 and is not retroactive. (pp. 58-61; 29 C.F.R. § 826.160).

The figures related to the COVID-19 pandemic have become grim in the United States.  As of March 30, 2020, at least 160,700 individuals have tested positive for the virus, with approximately 6,800 of those cases in California. As the number of positive COVID-19 cases continue to rise, we anticipate that many agencies will unfortunately be confronted with news that one of their own employees has contracted the disease, and will need to face the challenges that come with notifying other employees about their potential exposure.  LCW can assist you with navigating these difficult challenges and offers the following guidance on what to do if you become aware that an employee (other another individual close to the agency) tests positive for COVID-19.

 

Inform Fellow Employees Of Their Possible Exposure

Workplace safety and health regulations in California require employers to protect workers exposed to airborne infectious diseases such as COVID-19.  Therefore, if your agency discovers that an employee (or other another individual that has been in close contact with agency’s employees such as an independent contractor) has tested positive for COVID-19, your agency may notify affected employees in a way that does not reveal the personal health-related information of the individual who has tested positive for COVID-19.

Although providing affected employees in this manner is consistent with recent guidance issued by the Department of Fair Employment and Housing (“DFEH”) (the state administrative agency that largely enforces California’s anti-discrimination laws including the Fair Employment and Housing Act (“FEHA”)), agencies should be particularly cautious when communicating with employees about a potential exposure, and take care to not violate California’s Confidentiality of Medical Information Act (“CMIA”).  The CMIA requires employers to protect the privacy and security of any medical information they receive about their employees.  Under the CMIA, “medical information” means any “individually identifiable” information regarding the employee’s medical history, mental or physical condition, or treatment. “Individually identifiable” means that the medical information includes or contains any element of personal identifying information sufficient to allow identification of the individual, such as the individual’s name, address, electronic mail address, telephone number, or social security number, or other information that, alone or in combination with other publicly available information, reveals the individual’s identity.  An employer that violates the CMIA may be liable for compensatory damages, punitive damages not to exceed three thousand dollars ($3,000), attorneys’ fees not to exceed one thousand dollars ($1,000), and the costs of litigation.

Agencies that become aware that their employees have been exposed to an individual who has tested positive for COVID-19 should develop narrowly tailored communications that balance the safety interests of employees that have possible been exposed with the privacy rights of the individual who has tested positive for COVID-19.  Any communication to employees about their possible exposure should never identify any specific individual by name nor should the communication include information that would enable the reader to identify that person (i.e. the communication should not identify a specific work location if there is only one known employee that works in that location).  Rather, agencies should draft a notice that provides affected individuals with enough information to have a meaningful discussion with a healthcare provider and take the appropriate risk mitigating steps (i.e. increased social distancing, hand washing, self-monitoring of symptoms, etc.).  In their notice to affected employees, agencies should also consider advising that they will follow the Centers for Disease Controls (“CDC”) best practices for cleaning and disinfection.  Agencies might also refer affected employees to their county’s public health department’s website for guidance on monitoring for symptoms.

LCW has available to its clients a complimentary template notice for advising affected employees of their potential exposure which LCW can tailor specifically to the needs of your agency. This template notice (and a variety of other template documents related to COVID-19) can be requested through this link: https://www.lcwlegal.com/complimentary-templates-for-coronavirus-covid-19-related-policies

Clean and Disinfect Areas Used By The Employee Per CDC Guidelines

In addition to providing notice of potential exposure to affected employees, agencies should consider cleaning and disinfecting areas the individual who has tested positive for COVID-19 has come into contact with consistent with CDC guidelines which are available at: https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html

Reinforce Health Hygiene Practices

The CDC also recommends that employers that become aware of an employee who has tested positive for COVID-19 to support respiratory etiquette and hand hygiene for employees, customers, and worksite visitor and includes a number of suggestions available at: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.

Monitor and Plan for Absenteeism

Guidance from the CDC, OSHA, and local public health departments all discourage employees from attending work if they are sick or exhibiting symptoms of COVID-19.  Agencies should therefore prepare for the possibility that some employees may be absent after receiving notice about a possible exposure to COVID-19.  For examples, agencies should plan for alternative work coverage for the division or department with affected employees.  Agencies should also ensure that their attendance, sick leave policies, and policies related to the Families First Coronavirus Response Act (“FFCRA”) are updated.  LCW has available to its clients complimentary template FFCRA policies and forms which it can tailor specifically to the needs of your agency.

On March 30, 2020, Governor Gavin Newsom issued Executive Order N-40-20 which extends various statutory deadlines due to the State of Emergency in California relating to the COVID-19 pandemic.  Under the Executive Order, the deadline specified in Government Code section 3304(d) for opening and completing investigations of alleged misconduct by public safety officers is extended by 60 days.  This 60-day extension on the one-year statutory period to investigate police officer misconduct, and issue a notice of intent to discipline, only currently applies to investigations of police officers under the Public Safety Officers Procedural Bill of Rights Act (“POBR”).  There is no reference in Governor Newsom’s Executive Order to Government Code section 3254 of the Firefighters Procedural Bill of Rights Act or Government Code section 3508.1.  The 60-day extension, therefore, does not currently apply to similar investigations of firefighters or civilian employees in a City police department.  We will post another bulletin if clean-up legislation and/or Executive Order(s) from Governor Newsom are issued to address this discrepancy.

On March 27, President Trump signed into law HR 748, the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, which provides for $2 trillion in relief assistance to businesses, non-profits, state and local governments, public agencies and special districts, public elementary and secondary schools, institutions of higher education, and individuals.

The Act includes numerous provisions of interest to public agencies and their employees, including the creation of the following: (1) the Coronavirus Relief Fund; (2) the Disaster Relief Fund; (3) the Education Stabilization Fund; and (4) emergency relief lending for public agencies under the Coronavirus Economic Stabilization Act. Additionally, the CARES Act provides for the expansion of unemployment insurance for unemployed workers as well as clarifying and technical amendments to the leave provisions under Families First Coronavirus Response Act (“FFCRA”) that we addressed in our March 23 bulletin.

Coronavirus Relief Fund

The CARES Act amends the Social Security Act (42 USC § 301, et seq.) to create the $150 billion Coronavirus Relief Fund (the “Relief Fund”) (42 USC §601). The Relief Fund will provide the State of California approximately $15 billion in relief funds for “necessary expenditures incurred due to the public health emergency with respect to the Coronavirus Disease 2019 (COVID-19)” that “were not accounted for in the budget most recently approved” and which “were incurred during the period that begins March 1, 2020, and ends on December 30, 2020.”

Of the $15 billion in relief funds available to the State of California, the minimum share for the State, which is set at 55% of the total funds, amounts to at least $8.4 billion. The remaining portion, for which local governments may apply, will be capped at $6.6 billion.

In order to qualify for receipt of direct payments of relief funds, local governments must submit to the Treasury Department a certification signed by the government’s Chief Executive stating that the government’s proposed uses of the relief funds are consistent with the purposes of the Fund as described above.

Local government may receive an amount as determined by the population of the city or county relative to other cities and counties in the State.

Disaster Relief Fund

The CARES Act also creates a $45 billion Disaster Relief Fund (the “Disaster Relief Fund”) which allocates $25 billion to disasters declared pursuant to the Stafford Disaster Relief and Emergency Assistance Act (the “Stafford Act”) (42 USC 5121, et seq.), and additional $15 billion that may be used for other disaster relief purposes provided for under the CARES ACT (Sec. 251(b)(2)(D) of the Balanced Budget and Emergency Deficit Control Act of 1985).

Education Stabilization Fund

The CARES Act also creates a $30 billion Education Stabilization Fund (the “Stabilization Fund”) that requires the states to allocate $13.5 billion to local education agencies which provide funding for elementary and secondary (i.e., K-12) public schools.

Coronavirus Economic Stabilization Act Emergence Relief

The CARES Act authorizes the Secretary of Treasury to make up to $500 billion loans, loan guarantees, and other investments to eligible businesses, states, and political subdivisions of states related to losses incurred as a result of COVID-19. These subsidies will be provided in accordance with the Federal Credit Reform Act of 1990 (2 USC 661, et seq.).

Unemployment Insurance Expansion

The CARES Act includes the Relief for Workers Affected by Coronavirus Act, which expands unemployment insurance from three to four months, and provides temporary Federal Pandemic Unemployment Compensation of up to $600 per week in addition to the regular unemployment insurance compensation. The Act also provides for as many as 13 more weeks of unemployment compensation to workers who remain unemployed after state benefits expire.

Amendments to the Families First Coronavirus Response Act (“FFCRA”)

Finally, the CARES Act makes several clarifying and technical amendments to the Families First Coronavirus Response Act (“FFCRA”). These amendments are consistent with the interpretation that we previously provided in our bulletin concerning employees’ rights and employers’ obligations under FFCRA.

The CARES Act clarifies the pay limits for leave under the Emergency Family and Medical Leave Expansion Act. That act expanded the scope of leave permissible under the FMLA and provided for compensation to qualified individuals who utilize such leave. The CARES Act expressly provides that the limits of $200 per day and $10,000 in the aggregate, apply to each employee. The FFCRA did not provide sufficient clarity on that point.

The CARES Act also adds clarifying language concerning the pay limits for leave under the Emergency Paid Sick Leave Act. That act entitled qualified individuals to up to 80 hours of compensation at either their full regular rate of pay or two-thirds their regular rate of pay, subject to certain limitations. The CARES Act expressly provides that an employer is not required to provide an individual employee, who is otherwise entitled to their full regular rate of pay, more than $511 per day and $5,110 in the aggregate during such leave. The CARES Act also expressly provides that an employer is not required to provide an individual employee, who is otherwise entitled to two-thirds their regular rate of pay, more than $200 per day and $2,000 in the aggregate during such leave. This is consistent with our interpretation of the FFCRA..

The CARES Act also amends the definition of an “eligible employee” under Emergency Family and Medical Leave Expansion Act (29 USC § 2611(2)) in order to provide the Public Health Emergency FMLA Leave to certain qualified employees who are rehired by their prior employer following a layoff. The CARES Act provides that, in order to be eligible, the employee must have worked for the employer for not less than 30 of the last 60 calendar days prior to the being laid and that the layoff was subsequent to March 1, 2020. For example, if a public agency rehired a former employee it laid off on March 15 after the employee worked for the agency for one year, the employee would be entitled to the use Public Health Emergency FMLA Leave so long as the employee worked for the agency for at least 30 of the last 60 days prior to the employee’s layoff.

Liebert Cassidy Whitmore is monitoring the changing information and laws regarding the coronavirus closely. Please check https://www.lcwlegal.com/responding-to-COVID-19 for updates on this and other evolving matters related to COVID-19.

On March 25, 2020, the Department of Labor (DOL) Wage and Hour Division released new content and guidance on its COVID-19 and the American Workplace website.  Among the new content, is the notice of employees’ rights under the Families First Coronavirus Response Act (FFCRA) that, according to the FFCRA, employees must “post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted.”

Also among the new content on the DOL website, is the Families First Coronavirus Response Act Notice – Frequently Asked Questions, which provides answers to common questions about an employer’s obligations related to the FFCRA notice.  For example, the Frequently Asked Questions addresses how to post the notice when an employer’s workforce is largely teleworking.  The DOL states that in these circumstances, employers should email the notice to employees, direct mail the notice to employees, or post the notice on an employee informational internal or external website.  The Frequently Asked Questions also states that, while employers are not required to post the notice in multiple languages, the DOL is working to translate the notice to other languages.  The Frequently Asked Questions does not state when employers must post the FFCRA notice, but we recommend that employers post it no later than April 1, 2020, the effective date of the FFCRA.

The Field Assistance Bulletin 2020-1 is also among the new content on the DOL website.  The bulletin informs that the DOL will not bring enforcement actions against an employer for “violations of the Act occurring within 30 days of the enactment of the FFCRA, i.e. March 18 through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act.”  Generally speaking, an employer who violates the act “has made reasonable, good faith efforts to comply with the Act” when all of the following facts are present:

  1. The employer remedies any violations, including by making all affected employees whole as soon as practicable.
  2. The violations of the Act were not “willful,” i.e., the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”
  3. The Department receives a written commitment from the employer to comply with the Act in the future.

The Bulletin suggests that employers have until April 17, 2020, to comply fully with the FFCRA provided they are making reasonable, good faith efforts to do so, e.g., making necessary payroll modifications, completing calculations for coordinating leave accruals with FFCRA leave entitlements, etc. However, the Bulletin strongly implies that employers will have to remedy and make employees whole for any noncompliance between April 1 and April 17, 2020.  After April 17, 2020, the DOL will begin fully enforcing violations of the FFCRA

The DOL COVID-19 and the American Workplace website is available here: https://www.dol.gov/agencies/whd/pandemic

The Employee Rights: Paid Sick Leave and Expanded Family and Medical Leaver under The Families First Coronavirus Response Act (FFCRA) is available here: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

The Families First Coronavirus Response Act Notice – Frequently Asked Questions is available here: https://www.dol.gov/agencies/whd/fmla/pandemic

The Field Assistance Bulletin No. 2020-1 is available here: https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-1

The Families First Coronavirus Response Act (FFCRA) will take effect April 1, 2020, according to a new Q & A posted March 24, 2020 by the U.S. Department of Labor (DOL).  The DOL, the federal agency charged with implementing and enforcing the FFCRA, has been answering questions online and is working on regulations to implement the law.  This means that any leave taken prior to April 1, 2020 is not pursuant to the FFCRA.  The FFCRA will apply only to leave taken between April 1, 2020 and December 31, 2020.

The full Q & A can be found at:

https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Last week, we published several special bulletins covering COVID-19.  Below are short summaries and links to the updates published since our last COVID-19 round up.

We will continue providing these special bulletins and updates as needed.  Please visit https://www.lcwlegal.com/responding-to-COVID-19 for the most up-to-date bulletins.

Governor Newsom Amends Brown Act Changes in Subsequent Executive Order

On March 17, 2020, Governor Gavin Newsom issued Executive Order N-29-20.  In addition to provisions regarding Medi-Cal, CalFresh and CalWORKs, the Order supersedes the changes to the Brown Act in his March 12, 2020 Executive Order.

 

Update: CalPERS Suspends Retired Annuitant Work Hour Limitation during COVID-19 Emergency

On March 4, 2020, Governor Gavin Newsom issued Executive Order N-25-20.  The executive order, among other things, suspended certain restrictions applicable to retired annuitants.  On March 18, 2020, the California Public Employees’ Retirement System (“CalPERS”) issued Circular Letter 200-015-20, which explains the restrictions that are suspended for the duration of the state of emergency caused by the COVID-19 pandemic. Any hours worked by a retired annuitant to ensure adequate staffing during the state of emergency will not count toward the 960-hour per fiscal year limit.  In addition, the 180-day wait period between retirement and returning to post-retirement employment will be suspended.  Most other retired annuitant restrictions, including the limitations on permissible compensation and the prohibition of any benefits in addition to the hourly rate, remain in effect.

 

Families First Coronavirus Response Act Enacted Into Law 

On March 18, 2020, in response to the COVID-19 pandemic, and in an effort to reduce the impact of the virus on American families, the Senate passed the Families First Coronavirus Response Act (the Act) and President Trump signed the bill into law a few hours later.  The law will go into effect within 15 days of the President’s signature.

 

UPDATE, March 18, 2020, 9:09 a.m. House Passes Dramatically Revised Version Of Families First Coronavirus Response Act, Bill Finally Moves To Senate

On the evening of Monday, March 16, 2020, the House of Representatives passed a dramatically revised version of H.R. 6201, the Families First Coronavirus Response Act, which the Senate received on March 17.  Among the key changes to the bill is the significant limitation of the purposes for which employees may take Family Medical Leave Act (FMLA) Public Health Emergency Leave.

 

UPDATE, March 16, 2020, 5:49 p.m. Tax Credits for Private Employers in Families First Coronavirus Response Act

On March 14, 2020, at 12:51 am, in response to the COVID-19 pandemic, and in an effort to reduce the impact of the virus on American families, the House of Representative passed H.R. 6201, titled the Families First Coronavirus Response Act (the Act).  The bill will now move to the Senate, where it will be debated and voted upon.  If the bill passes in the Senate, President Trump will likely sign the bill into law, as he released a statement on March 14, announcing his full support of the bill.   It would become effective become effective within 15 days of the Act’s passage.  We will presumably learn the effective date when it is passed.

 

On March 4, 2020, Governor Gavin Newsom issued Executive Order N-25-20.  The executive order, among other things, suspended certain restrictions applicable to retired annuitants.  On March 18, 2020, the California Public Employees’ Retirement System (“CalPERS”) issued Circular Letter 200-015-20, which explains the restrictions that are suspended for the duration of the state of emergency caused by the COVID-19 pandemic. Any hours worked by a retired annuitant to ensure adequate staffing during the state of emergency will not count toward the 960-hour per fiscal year limit.  In addition, the 180-day wait period between retirement and returning to post-retirement employment will be suspended.  Most other retired annuitant restrictions, including the limitations on permissible compensation and the prohibition of any benefits in addition to the hourly rate, remain in effect.

 

Please see the Circular Letter for additional information: https://www.calpers.ca.gov/docs/circular-letters/2020/200-015-20.pdf

 

 

On March 18, 2020, in response to the COVID-19 pandemic, and in an effort to reduce the impact of the virus on American families, the Senate passed the Families First Coronavirus Response Act (the Act) and President Trump signed the bill into law a few hours later.  The law will go into effect within 15 days of the President’s signature.  As of right now, we do not know exactly what date the law will go into effect.   Once we know the date, we will immediately notify our clients.

Among other things, the Act amends the Family and Medical Family Leave Act (FMLA) by providing FMLA Public Health Emergency Leave and provides Public Health Emergency Paid Sick Leave to employees for certain coronavirus, or COVID-19, related reasons.  The final version of the law narrows the reasons (as compared to what had been passed by the House) an employee may take Public Health Emergency FMLA leave and places caps on the amount of paid leave available under the Emergency FMLA Leave and Paid Sick Leave.

FMLA Public Health Emergency Leave and Emergency Paid Sick Leave will remain in effect until December 31, 2020.  The benefits granted by the Act appear to apply to employees prospectively upon the effective day of the Act.

Here is what California employers need to know about the Act:

FMLA Public Health Emergency Leave

Which employers are required to provide FMLA Public Health Emergency Leave?

Private sector employers with fewer than 500 employees and all government employers.

There is a very narrow exception from the requirement to provide FMLA Public Health Emergency Leave for small businesses with less than 50 employees.  The Act gives the Secretary of Labor the authority to issue regulations for good cause to exempt small businesses with fewer than 50 employees from the FMLA Public Health Emergency Leave requirement “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”  Therefore, the Act itself does not exempt these small businesses at this time.

Who is eligible to take FMLA Public Health Emergency Leave?

Employees of the above employers who have been employed by the employer for at least 30 calendar days are eligible for FMLA Public Health Emergency Leave.  This is different than the eligibility requirements for regular FMLA leave, which requires an employee to have been employed by the employer for at least 12 months and have worked 1250 hours during that period of time.

An employer of a health care provider or an emergency responder may elect to exclude such employees from the application of these new FMLA provisions.  However, there is no definition for “health care provider” or “emergency responder.”

For what reasons may an employee take FMLA Public Health Emergency Leave?

An employee may take FMLA Public Health Emergency Leave if the employee is unable to work, or “telework”  due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.

This is much narrower than the qualifying reasons that would have been allowed in the version the House of Representatives passed on March 14, 2020.

How much FMLA Public Health Emergency Leave is an employee eligible to take and is the leave paid or unpaid?

Employees have the right take up to 12 weeks of job-protected Public Health Emergency Leave.  The initial 10 days of leave may consist of unpaid leave.  However, an employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave during the initial 10 days of leave.  The employee may also elect to substitute the two weeks of unpaid leave with the paid sick leave provided under the Emergency Paid Sick Leave Act, as further explained below.  This is different than the 14 day period that was provided in the March 14 version.

From the eleventh day of an employee’s Public Health Emergency Leave thereafter, the employer must provide paid leave in an amount not less than two-thirds of an employee’s “regular rate of pay” for the number of hours the employee would otherwise be normally scheduled to work during the leave time.  If the employee’s schedule has varying hours from week to week, the hours used for this calculation would be a number equal to the average number of hours that the employee was scheduled per day over the six-month period ending on the date which the employee takes the Public Health Emergency Leave, including hours used by the employee for leave of any type.  The Act appears to permit employees to supplement the two-thirds pay with their accrued leaves to achieve 100% of their regular rate of pay.

There is a cap on this paid portion of the Public Health Emergency Leave and will not exceed $200 per day and $10,000 total.

Are employees entitled to 12-weeks of FMLA Public Health Emergency Leave in addition to their existing 12-week leave entitlement under the FMLA?

Most likely, no.  The Act appears to merely add one other qualifying reason for an employee to take FMLA leave, i.e., to take care of a child during a school closure related to the coronavirus.  Therefore, if an employee has already used all or a portion of his/her 12-week entitlement of FMLA leave for another qualifying reason, then the employee is only entitled to use the remaining balance of his/her 12-week FMLA entitlement for a qualifying coronavirus-related reason.  Also, if the employee has already exhausted his/her 12-weeks of FMLA leave for another qualifying reason, he/she is not eligible to take any FMLA Public Health Emergency Leave.  Similarly, if an employee exhausts his/her 12-weeks of FMLA leave as FMLA Public Health Emergency Leave, the employee will be unable to take additional FMLA leave until he/she becomes eligible again for FMLA leave.

As we originally reported, this poses practical consequences for employees.  For example, longstanding employees who have exhausted their FMLA leave for a serious health condition may be ineligible for FMLA Public Health Emergency Leave, though they would be eligible for the Emergency Paid Sick Leave explained below, while newly hired employees with 31 days of employment would be eligible for a full 12 weeks of FMLA leave.  We will update our clients if additional clarification is issued regarding this matter.

What rights to reinstatement does an employee have after their FMLA Public Health Emergency Leave ends?

Employees have the same right to reinstatement as they would under the FMLA.  The only exception is for employers with less than 25 employees who can satisfy the following conditions:

  • The employee takes FMLA Public Health Emergency Leave;
  • The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a public health emergency during a period of leave;
  • The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced with equivalent employment benefits, pay and other terms and conditions of employment.
  • If such reasonable efforts of the employer fail, the employer makes reasonable efforts during the “contact period” to contact the employee if an equivalent position becomes available.

The “Contact Period” is defined as the 1-year period beginning on the earlier of: (1) the date one which the qualifying need related to the public health emergency concludes; or (2) the date that is 12 weeks after the date on which the employee’s FMLA Public Health Emergency Leave commences.

Does FMLA Public Health Emergency Leave run concurrently with leave under the California Family Rights Act (CFRA)?

While it is not entirely clear at this time,  FMLA Public Health Emergency Leave would probably not run concurrently with leave under the CFRA.  Although the original version of the Act included qualifying reasons that would have overlapped with CFRA, the only use of the Public Health Emergency FMLA is to care for a child because of a school closure.  This is not a qualifying condition under CFRA.

Emergency Paid Sick Leave

What types of employers are required to provide Emergency Paid Sick Leave?

Private sector employers with fewer than 500 employees and any government or public agency employer with one or more employees are required to provide Emergency Paid Sick Leave.

An employer of a health care provider or an emergency responder may elect to exclude such employees from the application of these new FMLA provisions.  However, there is no definition for “emergency responder.” Although it is not clear, “health care provider” may have the same meaning as in the FMLA.  (26 U.S.C. § 2611.)

Does an employee need to work for an employer for a certain period of time to become eligible for Emergency Paid Sick Leave?

No, an employee is eligible for Emergency Paid Sick Leave regardless of how long the employee has been employed by an employer.

Under what circumstances may an employee receive Emergency Paid Sick Leave and how much is the leave entitlement?

Employees are entitled to Emergency Paid Sick Leave at their regular rate of pay if they are unable to work or telework for the following reasons:

(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.

(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

(3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

Employees are entitled to Emergency Paid Sick Leave at two-thirds of the employee’s regular rate of pay if they are unable to work or telework because:

(4) The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or been advised by a health care provider to self-quarantine due to concerns related to COVID-19 order as described in subparagraph (1) or has been advised as described in paragraph (2).

(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.

(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

The Act appears to permit employees to supplement the two-thirds pay with their accrued leaves to achieve 100% of their regular rate of pay.

Paid Sick Leave Entitlement is subject to the following caps:

$511/Day and $5,110 in the Aggregate for the Following Employee-Related COVID-19 Absence Reasons

(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.

(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

(3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

$200/Day and $2,000 in the Aggregate for the Following Reasons Related to the Employee Taking Leave to Care for an “Individual” or “Son or Daughter”

(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).

(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.

(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor

Who is a Son or Daughter?

“Son or Daughter” has the same definition as it does under the FMLA, and means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is—

(A)   under 18 years of age; or

(B)   18 years of age or older and incapable of self-care because of a mental or physical disability.

Who is an individual?

The term “individual” is not defined and seems to be more open ended than the narrow definitions for “family member” and “domestic partner” in the previous version of the Act.  It is possible this could be a friend, neighbor or other person with whom the employee does not otherwise have a family member relationship.  Employers could require employees to provide the type of relationship when they request an employee to certify the need for leave

Does Emergency Paid Sick Leave run concurrently with FMLA Public Health Emergency Leave?

Yes, if the employee has FMLA leave available, Emergency Paid Sick Leave would run concurrently with FMLA Public Health Emergency Leave.  However, if an employee does not have any available FMLA leave, then he/she would only be able to take Emergency Paid Sick Leave and, therefore, the leaves would not run concurrently.  Further, please note that Emergency Paid Sick Leave applies to all employees of a covered employer immediately and regardless of how long the employees have worked for the employer.  Therefore, employees become eligible for Emergency Paid Sick Leave before they become eligible for FMLA Public Health Emergency Leave, which requires the employee to have first worked for at least 30 calendar days.

How does Emergency Paid Sick Leave interact with existing paid leave policies?

The revised bill text took out the section that noted that this paid sick leave is in addition to any paid leave provided for by the employer and that an employer cannot change their paid leave policies following the enactment of the bill.  However, the language seems to indicate that this paid sick leave must be used first before an employer can require an employee to use other paid leave.

It also seems to imply that if an employer already provides paid sick leave, it does not need to add 80 hours (assuming full-time) on top of such accruals.  It is not clear from the Act’s language what happens if an employee has already used such 80 hours of paid sick leave up before this law goes into effect.

An employee may choose to first use this Emergency Paid Sick Leave for the coronavirus-related uses noted above.  In addition, the Act suggests that because the first 10 days of FMLA Public Health Emergency Leave are by default “unpaid,” an employee can choose whether to use this Emergency Paid Sick Leave during that time or go unpaid.

Does Emergency Paid Sick Leave carry over from one year to the next?

No, any paid sick leave provided under this law does not carry over from one year to the next.

Do employers need to cash-out unused Emergency Paid Sick Leave at separation of employment?

No.  There is no obligation to cash-out or provide an employee with any unused Emergency Paid Sick Leave at the time of separation of employment.

In addition to the above provisions, the version of the Act that was signed into law includes an addition that requires the Secretary of Labor to issue regulations to exclude certain health care providers/emergency responders from the definition of “employee” under this Act, to exempt small businesses with less than 50 employees from the requirements to provide leave to care for son or daughter because school or childcare is closed, and to coordinate the implementation of this law with the provisions allowing tax credits for private employers.

Liebert Cassidy Whitmore is monitoring the changing information and laws regarding the coronavirus closely.  Please check https://www.lcwlegal.com/responding-to-COVID-19 for updates on this and other evolving matters related to COVID-19.