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.

 

The Coronavirus/COVID-19 has spread throughout much of the world, including California.  This is a situation that is evolving by the day – oftentimes, by the hour.  We are continuing to monitor this rapidly changing situation.  Below is a list of Coronavirus/COVID-19 updates and bulletins that LCW has recently published.

Public Agencies

Community College Districts

Public K-12 School Districts 

Non-Profit Employers

Additional Online Resources

 

For the most up-to-date information regarding the Coronavirus/COVID-19, please visit our dedicated webpage at https://www.lcwlegal.com/responding-to-COVID-19.

On March 15, 2020, Governor Newsom held a press conference where he made a further announcement regarding provisions for the public to help stop the spread of the coronavirus. As a consideration, in order to protect the most vulnerable, he stated that he was calling for the home isolation of all seniors and people with chronic conditions.  While he did not describe what that means, it is likely that he means that people 65 and older and those with chronic conditions should not leave their house, given that he discussed that his task forces would be working on logistics and the provision of wraparound services, including delivering food.

Governor Newsom gave a strongly worded request, in the interest of public health that people over the age of 65 and those with chronic conditions should not to work.  Although the guidance was not an order, employers will need to be aware that employees over the age of 65 and people with chronic conditions may legitimately feel the need to self-quarantine.   Employers may also consider pro-actively informing their employees that those who are 65 and older, or those who have chronic health conditions, may work remotely or request time off based on Governor Newsom’s guidance.

LCW recommends that if employees who are 65 or older or those with chronic health conditions state that they plan to self-quarantine, and not come to work, these employees can use sick leave or other leave balances.  Currently there is no other mandatory leave that employers must provide.   If the current version of the Families First Coronavirus Response Act for expansion of the Family Leave Rights Act (FMLA) and Emergency Paid Sick Leave does not change, these employees will likely not qualify for FMLA leave and Paid Sick Leave.  This may change depending on the final language of the Act and whether it is signed into law.

On the other hand, if an employee who is 65 and older wants to work and poses no health threat, employers should not require them to stay home.  Employers may not discriminate against employees based on their age, disability, or medical condition, and requiring employees in these protected categories not to come to work could be considered discriminatory.

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.

If signed into law, the Act would, among other things, amend the Family and Medical Family Leave Act (FMLA) by providing FMLA Public Health Emergency Leave and Emergency Paid Sick Leave to employees for certain coronavirus, or COVID-19, related reasons.  FMLA Public Health Emergency Leave and Emergency Paid Sick Leave become effective within 15 days of the Act’s passage (it is likely to be more quickly than 15 days) and the leave entitlement remains in effect until December 31, 2020, unless otherwise extended by law.  The benefits granted by the Act appear to apply to employees prospectively upon the effective day of the Act.

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

In the meantime, here is what California employers need to know if the Act is signed into law in its current state:

FMLA Public Health Emergency Leave

Who is eligible to take FMLA Public Health Emergency Leave?

Employees of private sector employers with fewer than 500 employees and employees of all government employers, who have been employed by the employer for at least 30 calendar days are eligible for FMLA Public Health Emergency Leave.  The eligibility for FMLA Public Health Emergency Leave is different from 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.

There is a very narrow possible 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.

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

An employee may take FMLA Public Health Emergency Leave for the following reasons:

  • To comply with a recommendation or order by a public official having jurisdiction or a health care provider on the basis that:
  • The physical presence of the employee on the job would jeopardize the health of others because of an exposure of the employee to coronavirus or exhibition of symptoms of coronavirus by the employee; AND
  • The employee is unable to both perform the functions of his/her position and comply with such recommendation or order.
  • E.g., the employee’s position or the available resources do not make telecommuting feasible under the circumstances.
  • To care for the employee’s family member who has been determined by a public official having jurisdiction or a health care provider that the presence of the family member in the community would jeopardize the health of other individuals in the community because of an exposure of the family member to coronavirus or exhibition of symptoms of coronavirus by the family member.
  • To care for the employee’s son or daughter under 18 years of age if their school or place of care has been closed or their childcare provider is unavailable due to a public health emergency.

Who is a “family member” for purposes of FMLA Public Health Emergency Leave?

The term “family member” means any of the following:

  • A parent of the employee
  • A spouse of the employee
  • A son or daughter who is under 18 year of age of the employee
  • An individual who is a pregnant woman, senior citizen, individual with a disability, or has access or functional needs and who is:
    • A son or daughter of the employee;
    • A “next of kin” of the employee or a person for whom the employee is “next of kin”; OR
    • A grandparent or grandchild of the employee.

Who is a “parent” for purposes of FMLA Public Health Emergency Leave?

For the purposes of FMLA Public Health Emergency Leave, “Parent” means the following:

  • Biological, foster, or adoptive parent of the employee
  • Stepparent of the employee
  • Parent-in-law of the employee
  • Parent of a domestic partner of the employee
  • A legal guardian or other person who stood in loco parentis to an employee when the employee was a child

How many days of 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 14 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 14 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.  However, an employer may not require an employee to substitute accrued leave during the initial 14 days of leave.

Then, from the fifteenth 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.

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 another qualifying reason for an employee to take FMLA leave, i.e., for coronavirus-related reasons.  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.

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 isissued 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, whether FMLA Public Health Emergency Leave would run concurrently with leave under the CFRA, would most likely depend on the reason an employee takes the leave.  For example, if the employee takes the FMLA Public Health Emergency Leave due to quarantine or to care for a child because of a school closure, it is unlikely the leave would run concurrently with CFRA leave because the leave is not taken for a CFRA qualifying reason.  Also, if the FMLA Public Health Emergency Leave is taken to care for a family member not covered under the CFRA, such as a grandparent, it is also unlikely the leave would run concurrently with CFRA leave.  Another consideration is whether the employee is eligible to take CFRA leave at the time he/she takes FMLA Public Health Emergency Leave.  For example, an employee is not eligible for CFRA until he/she has been employed by the employer for 12 months and has worked 1,250 hours during that period of time, while an employee is eligible for FMLA Public Health Emergency Leave after 30 calendar days of employment.

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.

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 for the following reasons:

  1. To self-isolate because the employee is diagnosed with coronavirus
  2. To obtain a medical diagnosis or care if the employee is experiencing the symptoms of coronavirus; or
  3. To comply with a recommendation or order by a public official with jurisdiction or a health care provider on the basis that the physical presence of the employee on the job would jeopardize the health of others because of the exposure of the employee to coronavirus or exhibition of symptoms of coronavirus by the employee.

Employees are entitled to Emergency Paid Sick Leave at two-thirds of the employee’s regular rate of pay:

  1. To care for or assist a family member of the employee who is either:
    a. Self-isolating because the family member has been diagnosed with coronavirus or is experiencing symptoms of coronavirus and needs to obtain medical diagnosis or care; or

b. Has been determined by a public official with jurisdiction or a health care provider that the presence of the family member in the community would jeopardize the health of other individuals in the community because of the      exposure of the family member to the coronavirus or the exhibition of symptoms by the family member

2. To care for the child of the employee if the school or place of care has been closed or the childcare provider of the child is unavailable due to coronavirus.

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.

Full time employees are entitled to 80 hours, and part-time employees are entitled to the typical number of hours that they work in a typical two-week period, of Emergency Paid Sick Leave.  If a part-time employee’s schedule varies from week to week, the amount of the leave entitlement is a number equal to the average number of hours that the employee was scheduled per day over the preceding six-month period ending on the date on which the employee takes the paid sick time, including hours for which the employee took leave of any type.

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?

For employers who already provide paid sick leave or other paid leave that can be used for illness, this paid sick leave entitlement is in addition to those accrued paid leaves.  An employer cannot change its existing paid leave accrual policies in response to the Act to avoid providing the additional Emergency Paid Sick Leave.

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 14 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.

However, an employer may not require an employee to use other paid leave provided by the employer before the employee uses this Emergency Paid Sick Leave for the coronavirus-related uses noted above.

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.

 

This Special Bulletin follows up on our February 5, 2020 Special Bulletin on COVID-19, the novel coronavirus of 2019.  The information in that Special Bulletin remains valid, including those steps individuals can take to lessen the spread of the virus.

In the past month, COVID-19 spread throughout much of the world, including to the United States.  California has now reported its first fatality associated with the virus, and Governor Newsom declared a state of emergency.  Given the scope of the virus’s spread and the fact that health professionals do not anticipate a vaccine will be available for approximately one year, public employers must make quick and important decisions concerning employees who, for example, exhibit symptoms of the virus, have traveled internationally or report having been in close contact with individuals who are infected or have traveled to areas where the virus is widespread and community transmission is sustained.

Employers have a duty to provide a safe work environment for all their employees.  However, employees who are infected, exposed or exhibit symptoms of the virus do not lose their rights.  As a result, employers are struggling with complex personnel decisions that are requiring them to balance protecting the health and safety of the workplace with the rights of individual employees.  Every situation is unique and should be discussed with legal counsel and analyzed before taking action. Moreover, employers should seek the advice of health care professionals to confirm that the directive to the employee as to length of the leave is correct, and if not, adjust the directive initially given to the employee accordingly.  Lastly, employers must recognize that employees have due process rights and should review Sections 1.G and/or 2.E below which provide our recommendations on due process requirements.

Below are some of the more common scenarios to help guide you:

1.) Employee exhibits symptoms common not only to COVID-19, but also the common cold and/or influenza

A.) Can you ask an employee to leave work and go home?

Yes, an employer can require an employee to go home if the employee is showing symptoms of a communicable illness (such as fever, coughing and/or shortness of breath).  An employer must ensure that it is acting in a non-discriminatory and non-retaliatory manner when making a decision to send an employee home. Therefore, employers should consider developing a standard by which they will act in scenarios where the employee is symptomatic (i.e., demonstrating signs of the illness).

Employers may consider the following criteria in order to develop such a standard: (1) Exhibition of symptoms associated with COVID-19; (2) Severity of such symptoms; (3) Travel to or through areas with known community transmission; and (4) Known or suspected contact with affected individuals. Employers may develop other criteria, however, such criteria should be directly related to the risk of transmission.

Please refer to Section 2.A. below for additional discussion concerning risk assessments associated with international travel.

B.) Am I required to send a sick employee home?

Under the California Occupational Safety and Health Act (“Cal-OSHA”), employers are required to maintain safe and healthy working conditions for employees.

Where there is a medical diagnosis of COVID-19, the employer must immediately send the employee home because COVID-19 constitutes a “serious health condition” and a risk to other employees. The failure of an employer to act in order to prevent the transmission of a known case of COVID-19 to other employees and would likely constitute a violation of Cal-OSHA.

In the more likely scenario where there is no medical diagnosis of COVID-19, the employer is not required to send the employee home. Here, the failure to act would likely not violate Cal-OSHA because the employer does not know the seriousness of the health condition or its transmissibility. However, the employer must use reasonable care in order to provide for the safety of other employees and in furnishing a suitable and safe place of work. As discussed above, the employer may use its discretion in determining whether to send an employee home, but should follow an objective standard in order to ensure it is not acting in an arbitrary or capricious manner.

C.) What is their pay status after being sent home?

If an employee sent home from work has a sick leave balance from which to draw, the employer may require that the employee use such leave for the duration of the isolation period.

If an employee sent home from work has no sick leave balance from which to draw or the employee exhausts their sick leave, the employer may require the employee to draw down accrued vacation time prior to the employer providing paid administrative leave to employees.

If during the isolation period, the employee’s treating physician diagnoses the employee with COVID-19, the employee will qualify for FMLA/CFRA leave because the condition constitutes a “serious health condition”. Should the employee be diagnosed with COVID-19, the employer may designate leave as FMLA/CFRA leave.

D.) What if the employee has no leave balances?

If an employee sent home from work has no paid leave balance from which to draw, the employer should place the employee on paid administrative leave.  The employer may not place the employee on unpaid leave of absence due to illness without impairing the employee’s property interest in employment.  Keeping the employee in the workplace while the employee receives due process prior to the leave would put other employees at risk.

E.) Does it matter if the employee insists it is just a cold or allergies?

No, it should not. An employer will be unable to distinguish symptoms associated with allergic reactions from those associated with communicable conditions, such as cold, influenza, or COVID-19.  Therefore, in order to ensure safe and healthy working conditions for all employees, an employer should act in a consistent manner and apply the same standard to all employees who are symptomatic.

If an employee provides a certification from their treating physician that the symptoms are non-communicable, the employer may reasonably rely on such assurances and allow the employee to return to work. However, without such certification, the employer should require that the employee remain at home until they are asymptomatic (i.e., showing no signs of fever, coughing or shortness of breath).

F.) If sent home, when can they come back to work?

A symptomatic employee sent home from work should contact a medical professional for further advice. The employee should engage in self-observation while away from work.

The employer should instruct the employee not to return to work unless the employee is asymptomatic. The employer may require that the employee provide a note from the employee’s treating physician clearing the employee to return to work.  Furthermore, the employer may require that the employee undergo a medical examination at the employer’s expense for the purpose of determining the employee’s “fitness for duty” prior to their return to work.

The employer should immediately send home from work any employee who returns to work after an illness and still exhibits symptoms of a communicable disease. If an employer has concerns about an employee’s ability to perform their job, even after providing a note from their treating physician, the employer may request that the employee undergo a medical examination at the employer’s expense for the purpose of determining the employee’s “fitness for duty.”  If the employee was diagnosed with COVID-19, and the employer designated the leave as FMLA/CFRA leave, the employer must accept the physician’s certification that the employee can return to work.

G.) Due process rights

Public employees who are sent home are deprived of their property right to employment and are entitled to due process, even where they receive pay during their leave by drawing down leave balances.  We suggest that public employers provide required due process as follows:

1.) Employees who are sent home who are either (a) at-will with no property rights in employment; or (b) put on a fully paid leave not requiring them to draw down leave balances

           No due process required.

2.) Employees who have property rights in their employment and must use leave balances for all or part of their leave;

a.) Given the exigent circumstances presented by COVID-19 in the workplace, no pre-deprivation due process is required.  (However, the employer should review the agency’s rules, MOUs, etc., regarding any greater due process requirements under these  circumstances);

b.) Post-deprivation due process is required.  The level of due process that is required depends on the circumstances.  Here, we believe a post-deprivation Skelly meeting should be sufficient if the issue is the drawdown of leave balances.  An employee put on a fully unpaid leave (e.g., no leave balances available and the employer does not provide paid leave) should be given a full evidentiary hearing.  (Note-we are not recommending any employee be put on a fully unpaid leave).

The employer can choose to provide full evidentiary hearings to all employees that are placed on leave and have to draw down leave balances who are entitled to due process.  The employer should check the agency’s rules, MOUs, etc., to determine if full evidentiary hearings or additional due process is required under the circumstances.  Also, to minimize potential due process claims and avoid the time and expense of providing due process, the employer can choose the safer (but more expensive) option of putting all employees on fully paid leave.

2.) Employee exhibits no symptoms but you learn the employee has traveled to an area where there is widespread community transmission of COVID-19 or been in close contact with someone who has tested positive for COVID-19:

A.) Can you ask the employee to leave work and go home?

Employers have a duty to maintain safe and healthy working conditions for employees, and must use reasonable care to provide for the safety of his employees and in furnishing a suitable and safe place of work. If the employer has reason to believe that the employee was exposed to COVID-19 and poses a threat to other employees, the employer may place the employee on sick leave in order for the employee to seek a diagnosis.

As with symptomatic employees, employers should consider developing a standard by which they will objectively assess the risk of asymptomatic employees whose travel and/or interactions placed them at increased risk of exposure to COVID-19.

For individuals returning from international travel, the CDC publishes a risk assessment by country (https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html) which employers may use to develop a risk assessment standard based on such travel. Current CDC advice provides that COVID-19 symptoms may appear 2-14 days after exposure. Therefore, an employer could provide that any employee who has traveled to or through a country identified by the CDC as high risk must remain at home and away from work for no less than 14 days after such travel unless a health professional advises the employer that the employee may return earlier.

For individuals who have known or suspected exposure to an individual who has tested positive for COVID-19, the employer may require a comparable self-quarantine away from work for 14 days after such potential exposure, unless a health professional advises the employer that the employee may return earlier.

B.) What is their pay status after being sent home?

Employers may require that an employee use sick leave during any self-quarantine. If the employee exhausts their sick leave, the employer may require that the employee draw down any accrued vacation time prior to placement on paid administrative leave.

Asymptomatic employees should remain in self-quarantine away from work for a period of not less than 14 days after the potential exposure.

C.) What if the employee has no leave balances?

If an employee sent home from work has no paid leave balance from which to draw, the employer should place the employee on paid administrative leave.   The employee retains a property interest in their job, which the employer may not impair by placing the employee on an unpaid leave of absence due to illness or prospective illness, without providing due process.

D.) If sent home, when can they come back to work?

Current CDC advice provides that COVID-19 symptoms may appear 2-14 days after exposure.  Therefore, employees should remain on leave for a period of not less than 14 days after the potential exposure unless a health professional advises the employer that the employee may return earlier.   If the employee has not exhibited any symptoms associated with COVID-14 during the self-quarantine, the employer may allow the employee to return to work.

E.) Due process rights

Public employees who are sent home are deprived of their property right to employment and are entitled to due process, even where they receive pay during their leave by drawing down leave balances.  We suggest that public employers provide required due process as follows:

1.) Employees who are sent home who are either (a) at-will with no property rights in employment; or (b) put on a fully paid leave not requiring them to draw down leave balances;

          No due process required.

2.) Employees who have property rights in their employment and must use leave balances for all or part of their leave;

a.) Given the exigent circumstances presented by COVID-19 in the workplace, no pre-deprivation due process is required.  (However, the employer should review the agency’s rules, MOUs, etc., regarding any greater due process requirements under these circumstances);

b.) Post-deprivation due process is required.  The level of due process that is required depends on the circumstances.  Here, we believe a post-deprivation Skelly meeting should be sufficient if the issue is the drawdown of leave balances.  An employee put on a fully unpaid leave (e.g., no leave balances available and the employer does not provide paid leave) should be given a full evidentiary hearing.  (Note-we are not recommending any employee be put on a fully unpaid leave).

The employer can choose to provide full evidentiary hearings to all employees that are placed on leave and have to draw down leave balances who are entitled to due process.  The employer should check the agency’s rules, MOUs, etc., to determine if full evidentiary hearings or additional due process is required under the circumstances.  Also, to minimize potential due process claims and avoid the time and expense of providing due process, the employer can choose the safer (but more expensive) option of putting all employees on fully paid leave.

3.) Employees who refuse to work with someone they suspect is infected, but who exhibits no symptoms  and for whom there is no reason to believe the employee is infected; and employees who refuse to work somewhere that they suspect will cause them to become infected:

A.) Can these employees be disciplined for failing to return to work?

Employers must use reasonable care to provide for the safety of employees and in furnishing a suitable and safe place of work.  This includes providing employees safety devices that are reasonably necessary in order to protect their health and safety.

Therefore, an employer that has not provided or agreed to provide safety devices that are reasonably necessary to protect their employees’ health and safety may not discipline an employee who refuses to return to work until such time as the employer can ensure their health and safety. An employer may treat an employee’s refusal to return to work despite the employer’s reasonable steps to ensure safe and healthy working condition as an unexcused absence or possibly insubordination.

Furthermore, all public employees are declared to be disaster service workers subject to such disaster service activities as may be assigned to them by superiors following a declaration of emergency.  Failure to follow a lawful emergency assignment could be grounds for discipline for insubordination.

B.) Does the employer have any obligation to test the employee suspected of being infected, and/or remove that employee from the workplace?

Employers have no obligation to subject an employee suspected by another employee of being infected to medical tests or removal from the workplace.  As discussed above, an employer must ensure that it is acting in a non-discriminatory and non-retaliatory manner and should develop a standard by which it will assess the risk of transmission by individual employees. Absent an individual employee exhibiting symptoms associated with COVID-19 or having traveled to areas or interacted with persons that would place them at increased risk of exposure to COVID-19, the employer should not arbitrarily subject an employee suspected by another employee of being infected to medical tests or removal from the workplace.

C.) Does it matter if the employee refusing to work is in a high-risk group, (such as someone with a compromised immune system)?

According to the CDC, preliminary data suggests that older adults and persons with underlying health conditions or compromised immune systems might be at greater risk for severe illness from the virus.

While older adults are not strictly protected under either the Americans with Disabilities Act (“ADA”) or the Fair Employment and Housing Act (“FEHA”), under FEHA employees with known pre-existing conditions, including underlying health conditions or compromised immune systems, may request a reasonable accommodation that will allow them to telecommute as opposed to returning to work. Employers must engage in the interactive process with employees who request reasonable accommodations and must accommodate the request if doing so would not create an undue hardship for the employer’s operation.

4.) Do the actions described in this bulletin require meet and confer?

Sending employees home, requiring the use of leave, and creating the list of factors to consider before doing so, etc., may trigger meet and confer obligations. For agencies subject to the Meyers-Milias-Brown Act (“MMBA”) (Government Code section 3500, et seq.), Section 3504.5, subdivision (b) provides an emergency exception. It allows an employer to take action so long as the employer provides notice of the change to affected employee associations and provides those associations the opportunity to meet and confer at the earliest practicable time.

Given the exigency related to protecting an employer’s workforce, we recommend that, if an employer decides to take action on a negotiable subject, the employer immediately inform the affected employee associations.  The employer should provide these associations an opportunity to meet and confer before making change if possible, or, if not, as soon thereafter as is practicable.