This COVID Briefing was authored by J. Scott Tiedemann and Paul D. Knothe. 

As the COVID-19 pandemic continues, law enforcement professionals bravely continue to perform their duties and come in regular contact with the public, potentially exposing themselves to the virus.  Concerned for the safety of their officers and the communities they serve, law enforcement agencies are pondering the permissibility and wisdom of large-scale testing.  Is it permissible for agencies to require all officers to be tested for COVID-19?  Is it wise?  What about testing of officers who exhibit symptoms or were exposed to persons who are known to have tested positive?

Federal, state, and local authorities have published guidance that can inform agency decisions, but does not answer all questions agencies may have.  On April 19, 2020, the California Department of Public Health published updated interim guidance on prioritization for COVID-19 lab testing.  This guidance divided potential persons to be tested into four Priority groups, and placed symptomatic law enforcement personnel in the second highest priority, labeled Priority 2.  Priority 1 consists of hospitalized patients, symptomatic healthcare workers, persons identified by public health contact investigators and disease control activities in high-risk settings such as congregate living facilities and correctional facilities.

The City of Los Angeles and County of Los Angeles, for example, jointly announced on April 22 that COVID-19 testing would be made available to certain classes of persons, including law enforcement professionals and other first responders, free of charge.  Officers in Los Angeles County who are interested in scheduling a COVID-19 test may do so through this website: https://lacovidprod.service-now.com/rrs_first_responders.  Agencies in other jurisdictions should stay abreast of their local testing programs.

The Food and Drug Administration (FDA) has given emergency approval to certain antibody tests, also known as serological tests, for first responders, and expects to approve more such tests.  These tests do not test for COVID-19 itself, but instead for antibodies the body develops to fight the virus.  It is not clear how much utility there is to antibody tests.  First, antibody tests are prone to false negatives, as the immune system does not begin producing antibodies immediately upon acquiring the virus, and therefore, a person could be infected with the coronavirus and test negative on an antibody test.  Further, the FDA and the World Health Organization both caution that, unlike, for example, the chicken pox,  there is no evidence that being infected with COVID-19 once and developing antibodies will prevent a person from being infected a second time.

Requiring an employee to submit to a COVID-19 test is a medical examination and therefore, like temperature testing, must satisfy the “business necessity” standard under both state and federal law.  On April 23, 2020, the federal Equal Employment Opportunity Commission (EEOC) issued Technical Assistance Questions and Answers that indicate that, from the EEOC’s perspective, business necessity does exist to test employees for COVID-19.  The Department of Fair Employment and Housing, the California agency tasked with enforcing analogous state statutes, has not published any guidance one way or the other on the question.

However, given the frequency with which law enforcement officers come in contact with the public, required testing may be of questionable efficacy and only provide a false sense of security.  As the EEOC Technical Assistance Questions specifically note, “accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.”  Testing asymptomatic officers only shows that they have not acquired the virus as of the moment of the test; they may be exposed on their very next call for service.  Therefore, testing an asymptomatic peace officer on any given date for COVID-19 may not have significant advantages to the officer, the department, or the public beyond those already provided by daily pre-shift temperature testing and rigorous PPE and sanitizing practices.  It may be more efficient for a department instead to only mandate testing for employees who exhibit symptoms or who have been exposed to persons confirmed to have the virus.  If an agency does decide to require or facilitate COVID-19 testing for officers or other employees, it is essential to be mindful of the employee’s privacy rights.  In order to receive and use the results of a COVID-19 test, an agency must obtain a valid Confidentiality of Medical Information Act (CMIA) waiver form the employee being tested.  The CMIA has precise requirements for such waivers, all the way down to the size of the font (14 point.)

Ultimately, there is no one-size-fits-all solution; agencies considering requiring testing of some or all of their peace officers should consult with trusted counsel.

On April 23, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance concerning the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act and how employers may respond to the public health emergency caused by COVID-19. The EEOC makes clear that while the laws will continue to apply during the present public health emergency, the EEOC will not interfere with or prevent employers from following the guidance issued by the Centers for Disease Control (“CDC”) or by state or local public health authorities concerning steps to respond to COVID-19.

Most notably, the new guidance suggests that employers may test employees for COVID-19 if the employer follows certain requirements. In response to the question of whether an employer may administer a test to detect COVID-19 before permitting employees to enter the workplace, the guidance provides:

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.”  Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

The guidance further states that employers need to ensure that the tests are safe, accurate, and reliable, and that employers should consider the incidence of false-positives or false-negatives associated with a particular test in order to determine whether such a test is, in fact, reliable.

As noted by the guidance, under the ADA, employers may not require medical examinations of current employees unless the examination is job-related and consistent with business necessity.  Generally, a medical examination will meet this standard when an employer has a reasonable belief, based on objective evidence that an employee’s ability to perform essential job functions will be impaired by a medical condition or an employee will pose a “direct threat” due to a medical condition. In this context, “direct threat” means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The employer must determine that an employee poses a “direct threat” based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. In determining whether an individual would pose such a threat, the employer should consider the following factors:

(1) The duration of the risk;

(2) The nature and severity of the potential harm;

(3) The likelihood that the potential harm will occur; and

(4) The imminence of the potential harm.

The EEOC guidance suggests that employers may test their employees for COVID-19 before the employees enter the workplace. However, given that there is a shortage of testing kits and supplies and that processing such tests requires, at minimum, several days, screening each  employee every day is not feasible. A more likely scenario is that an employer tests some or all employees, who have been away from work, either because they were teleworking or deemed non-essential, prior to those employees returning to the workplace.

Employers should note that, because  employers must perform an individualized assessment as to whether the medical exam is job-related and consistent with a business necessity in each case, an across-the-board mandatory testing policy for all employees that does not provide for exceptions (e.g., no contact with any other individual in the past 14 days), may be impermissible. Employers who elect to adopt such a testing policy and protocol should therefore design such policy and protocol to allow for exceptions where an individual employee may not need to be tested.

The EEOC previously provided guidance that employers may screen for symptoms of COVID-19 and take temperatures of employees. There, the EEOC made clear that the employer must ensure that it maintains records of screenings confidentially. The same requirement would apply where an employer implements a policy for screening employees for COVID-19.  Additionally, in order to receive and use the results of a COVID-19 test, an agency must obtain a valid Confidentiality of Medical Information Act (CMIA) waiver form the employee being tested.  The CMIA has precise requirements for such waivers, all the way down to the size of the font (14 point.)

California law also governs the question of whether medical examinations are permissible. The Department of Fair Employment and Housing (“DFEH”), the state agency primarily responsible for enforcing employment laws in California, however, has not issued any guidance related to employer-required testing for COVID-19 or commented on the guidance provided by the EEOC. However, like the ADA, the Fair Employment and Housing Act (“FEHA”) also authorizes employers to perform medical examinations where the employer can demonstrate that the examination is “job related and consistent with business necessity.”  Although the DFEH has not issued guidance, the analysis under the FEHA is sufficiently similar to the analysis under the ADA such that the DFEH would likely arrive at a similar conclusion when balancing public health and safety against the intrusion into personal privacy.

Under the EEOC guidance, employers may require testing of employees returning to work after having COVID-19 or exhibiting symptoms of COVID-19 if the employer determines under an individualized assessment that the test is job-related and consistent with a business necessity. While the DFEH has not issued guidance, given the public health emergency caused by the COVID-19 pandemic and the threat to workplace health safety that COVID-19 presents, it is likely that the DFEH will come to the same conclusion.

LCW will monitor this evolving situation and will update you if the DFEH issues guidance. Additionally, LCW attorneys can help you with questions about adopting a testing policy.

This COVID Briefing was authored by J. Scott Tiedemann and Paul D. Knothe. 

A fever, which is defined by the Centers for Disease Control and Prevention (CDC) as 100.4°F/38°C or higher, is a symptom and key indicator of COVID-19.  Many employers, including law enforcement agencies, are already taking or are considering taking employees’ temperatures before allowing them to begin work for the day.

Taking an employee’s temperature is a medical examination, and under normal circumstances, doing so might violate an employee’s rights under the federal Americans with Disabilities Act and the state Fair Employment and Housing Act to require them to submit to the temperature test simply to enter the workplace.  However, medical tests are permissible under both laws if justified by “business necessity,” and during the COVID-19 emergency, until the guidance from federal, state and local health authorities changes.  We believe it is likely courts will agree taking employee temperatures is a business necessity in the context of the pandemic.

Requiring employees have their temperatures taken on reporting to work, however, is also likely a change in the terms and conditions of employment for most employees and generally will require an agency to meet and confer.  We believe that, in the context of the COVID-19 emergency, a temperature-testing program could qualify for the “emergency exception” under the Meyers-Milias-Brown Act.  The emergency exception is applicable when there is an unforeseen situation that poses an imminent and substantial threat to public safety, and where the employing agency reasonably believes that harm will occur if it does not take immediate action.  When the “emergency exception” applies, an agency may implement a change first, in order to confront the emergency, and then meet and confer with the affected associations as soon as practicable thereafter.  It does not excuse an employer from meeting and conferring; it simply changes the timing of it.

It is more likely than not that courts would consider the time spent by employees having their temperature taken to be compensable work time under the Fair Labor Standards Act and/or the California Labor Code.  Federal regulations, at 29 C.F.R. 785.43, provide that time spent by an employee waiting for or receiving medical attention on the premises or at the direction of the employer is compensable work time, and although there is no published authority as to whether taking an employee’s temperature constitutes medical attention, that interpretation is certainly possible.   More importantly, because an employee is subject to the control of the employer while having his or her temperature taken (or  waiting in line to do so), the courts would most likely find this to be compensable working time.  Even if the temperature taking process is run efficiently and requires only a minute or two per officer per day, the courts would likely still find the time to be compensable because the wait occurs regularly and adds up to a larger aggregate amount.  If an employer is looking to avoid additional wages owed when doing temperature testing, it should consider doing the testing during the employee’s shift, rather than pre-shift.

Although there may be some legal risks and costs associated with pre-work temperature testing, we expect that many Departments will find the benefits of temperature testing – namely, limiting the spread of COVID-19 in the workplace – to be well worth the legal risks.  Departments considering implementing temperature testing are encouraged to consult with trusted legal counsel.

The California Public Employees’ Retirement System (“CalPERS”) has answered several outstanding questions concerning how paid leave hours taken under the Families First Coronavirus Response Act (“FFCRA”) should be tracked and reported.  On April 16, 2020, CalPERS issued Circular Letter No. 200-021-20 which explains how to report compensation and track hours for employees taking leave under the Emergency Paid Sick Leave (“EPSL”) and the Emergency Family and Medical Leave (“EFML”) provisions of the FFCRA.

Reporting Hours for the Purposes of Enrollment in CalPERS Membership

The Circular Letter provides that all hours in paid status under the FFCRA will be reported to CalPERS for the purposes of determining eligibility in membership.  For most part-time hourly employees whose hours must be tracked, the paid leaves will count towards the 1,000-hour per fiscal year threshold for enrollment in membership.

Based on this guidance, agencies need to be aware that if they retain employees on paid FFCRA leave beyond the 1,000-hour threshold, they will become eligible for CalPERS membership, unless excluded by statute or under the agency’s CalPERS contract. Once enrolled, the employees must be enrolled in all subsequent fiscal years, regardless of the number of hours worked.

Reporting Hours and Compensation for Retired Annuitants and Permissible Benefits

Under the Public Employees’ Retirement Law (“PERL”) and the Public Employees’ Pension Reform Act (“PEPRA”), retired annuitants may not receive any benefit in addition to their  hourly rate.  However, the definitions for eligible employees under the FFCRA likely includes most retired annuitants.

The Circular Letter provides that retired annuitants may receive paid leave under the FFCRA without violating the post-retirement work restrictions provided under the PERL and PEPRA.  Retired annuitants will not be subject to reinstatement for receiving payments under the FFCRA.

The hours of paid leave a retired annuitant receives under the FFCRA must be reported to CalPERS as hours worked for the purposes of the 960-hour per fiscal year limit.  Under Executive Order N-25-20, any hours worked by a retired annuitant to ensure adequate staffing during the state of emergency do not count toward the 960-hour per fiscal year limit.  The modification of the 960-hour threshold was discussed in a previous LCW post.  However, the paid leave hours are included in the 960-hour per fiscal year limitation for all retired annuitants.

Reporting Compensation for Employees Taking Paid Leave Under the FFCRA

The Circular Letter provides that all paid hours of paid sick leave under the FFCRA are reportable as compensation earnable for classic members or pensionable compensation for new members. CalPERS has also informally indicated that paid leave under the EFML is reportable as well. Generally, the paid leave should be reported in the same manner as other paid leaves.  If an employee supplements any FFCRA leave with other accrued leaves so that they are receiving full pay, reporting of compensation will not differ from any other situation where an employee takes paid leave.

The full-time payrate should not be modified, but earnings may be less than the full-regular payrate where the employee is  receiving less than their regular compensation due to the FFCRA daily caps ($511 for EPSL and $200 for EFML), and the pay is not supplemented with other leaves.

CalPERS has not provided official guidance on how to report compensation when the payment under the FFCRA is less than the employee’s regular compensation because of the FFCRA caps and the FFCRA pay is not supplemented with other leaves.  Nonetheless, we anticipate that in those circumstances, CalPERS is likely to accept reporting of all of the earnings as payrate (up to the employee’s regular payrate) before reporting any of the pay as special compensation.  Reporting earnings this way will have a lesser impact on the service credit earned during the leave period.  In any event, all compensation reported must be reportable under CalPERS’ regulations.  We will provide an update if we receive any additional information from CalPERS on how to report earnings.

We will keep you informed as CalPERS’ guidance evolves.

Note: This is the second of a two-part series concerning federal unemployment assistance. You may access the first bulletin here.

On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) into law. Under that Act, the federal government established several programs to expand unemployment assistance to workers who lose their jobs or work hours due to the COVID-19 pandemic.

In the first bulletin, we discussed the Federal Pandemic Unemployment Compensation (“FPUC”) program, which provides eligible individuals with $600 per week in federal unemployment compensation to supplement state unemployment compensation. The purpose of this bulletin is to explain a related program, the Pandemic Emergency Unemployment Compensation (“PEUC”) program, which provides temporary federal unemployment compensation to individuals after they exhaust their entitlement to state unemployment compensation.

In this bulletin, we examine the interplay between the PEUC and FPUC programs as well as the interaction between state unemployment compensation and state extended unemployment compensation and PEUC. This bulletin is particularly important for employers that are or may be considering layoffs or reduced work hours for their workforces because it can be used to provide important information to employees on unemployment benefits and conditions for such benefits.

Pandemic Emergency Unemployment Compensation

Section 2107 of the CARES Act creates the PEUC program. The program is a new federal entitlement that provides eligible individuals up to 13 weeks of federally funded unemployment compensation once they have received and exhausted the 26 weeks of unemployment compensation provided by the state.

For eligible and qualified individuals, the PEUC will be equal to the amount of unemployment compensation that the state would otherwise provide, but for the fact that the individual exhausted their entitlement to such compensation. Therefore, an eligible qualified individual will receive between $1 and $450 per week based on whether they are fully or partially unemployed in a given week and their income in the preceding year.

The PEUC program expires December 31, 2020, and so no payments will be made after that date.

DOL Guidance Regarding PEUC  

On April 10, the Department of Labor (“DOL”) issued a program letter providing guidance concerning operation of the PEUC program, including eligibility criteria and specific information on how the program interacts with existing state and federal unemployment programs.

Eligibility Criteria and PEUC Interaction with Regular Unemployment Compensation

The DOL guidance provides that in order to be eligible to receive PEUC funds, an individual must satisfy each of the following conditions:

  1. The individual has exhausted all rights to regular unemployment compensation under state law with respect to a benefit year that ended on or after July 1, 2019;
  2. The individual has no rights to regular unemployment compensation with respect to a week under any other state unemployment compensation law, or to compensation under any other federal law; and
  3. The individual is able to work, available to work, and is actively seeking work.

In other words, in order to qualify for PEUC funds, an individual must have received 26 weeks of regular unemployment compensation under California law on or after July 1, 2019, not be entitled to any regular state unemployment compensation from any other state or federal government and be able and available to work and be actively seeking work. For example, if an individual was laid off on October 19, 2019 and started receiving state unemployment compensation the next day, that individual would have exhausted all rights to regular state unemployment compensation by April 20, 2020 such that the individual would qualify for PEUC for the following 13 weeks.

The DOL guidance makes clear that the individual need only exhaust regular unemployment compensation, not any extended unemployment compensation to which the individual may be entitled. This is important for the order of operations concerning which unemployment benefits an individual may be entitled at a given time. Based on the DOL guidance, after an individual exhausts 26 weeks of unemployment compensation provided by the state, the individual may receive PEUC for the ensuing 13 weeks, so long as the individual remains so qualified.

PEUC Interaction with Extended Unemployment Compensation

In California, “[d]uring prolonged periods of cyclical and technological unemployment,” an individual who exhausts their entitlement to regular unemployment compensation may be entitled to extended unemployment compensation. The State Unemployment Insurance Code refers to this compensation as an “extended duration award.”

Unlike regular unemployment compensation, which is available to eligible and qualified individuals at all times, extended duration awards are available to eligible and qualified individuals only when certain labor conditions are satisfied. State law provides that such extended benefits will only be available starting in the third week following a week in which “the insured unemployment rate equals or exceeds 6 percent” and will only be through the third week following a week in which the insured unemployment rate drops below 6 percent.

On April 17, California released its jobs report for March, which showed an unemployment rate of 5.3% and up from 3.9% in February. However, that report was based on information collected prior to March 12, and therefore does not reflect the hundreds of thousands of new jobless claims in the intervening month. As a result, labor conditions in California very likely satisfy the condition precedent for the commencement of the extended duration awards such that individuals who have exhausted regular unemployment compensation may soon be qualified to receive extended benefits under the state program.

However, the CARES Act and DOL guidance provide that “the payment of extended compensation for which an individual is otherwise eligible must be deferred until after the payment of any PEUC for which an individual is concurrently eligible.”  Therefore, once the labor conditions exist such that an individual who has exhausted regular state unemployment compensation would otherwise qualify for an extended duration award from the state, that individual would first receive the PEUC.

Again, this is important for the order of operations, which first provides that an eligible and qualified individual would receive regular state unemployment compensation, and then, once that compensation is exhausted, would receive PEUC, even if conditions are such that the individual would normally receive extended unemployment compensation from the state.

PEUC Interaction with Federal Pandemic Unemployment Compensation

The third piece of the puzzle is the interplay between PEUC and FPUC, which we addressed in the prior bulletin.

The interaction between these two programs is limited temporally because, while the PEUC program is operational through the end of 2020, the FPUC program expires on July 31, 2020. Therefore, the programs only overlap operationally through the end of July. The majority of individuals who are laid off as a result of the COVID-19 pandemic will not qualify to receive both PEUC and FPUC simultaneously because of the order of operations of unemployment compensation programs and the timing of the layoff. For example, an individual who was laid off on April 1, 2020 will not exhaust the 26 weeks of regular state unemployment compensation and become qualified to receive PEUC until the end of September by which point the FPUC program will  have expired.

However, an individual, like the one described earlier in the bulletin, who was laid off in October 2019, will exhaust all rights to regular state unemployment compensation by the end of April 2020 such that the individual would qualify for PEUC and FPUC for the 13 weeks until the PEUC was exhausted. Such an individual, in any week of unemployment after exhaustion of the regular state unemployment compensation and prior to July 31, 2020, the individual will be eligible and qualified to receive PEUC and also receive the $600 in supplemental assistance under the FPUC program.

FPUC Interaction with Extended Unemployment Compensation

The final question, and one not addressed in the previous bulletin, is whether an individual who is eligible and qualifies to receive an extended duration award from the state after the exhaustion of the PEUC will also be entitled to receive FPUC. The answer to that question is yes. Prior DOL guidance provides that “extended benefits” is one of the programs under which an individual would be entitled to receive FPUC.

Overview of Interactions between Unemployment Compensation Programs

The below chart is intended to provide an overview of which unemployment compensation programs are available, whether supplemental unemployment compensation is available for each week of unemployment, and any relevant qualifications to the receipt of such compensation.

Weeks of Unemployment Unemployment Compensation Program Supplemental Unemployment Compensation Qualifications to Compensation
1-26 Regular State Unemployment Compensation Yes, Federal Pandemic Unemployment Compensation (“FPUC”), but only through July 31, 2020
27-39 Pandemic Emergency  Unemployment Compensation (“PEUC”) Yes, FPUC, but only through July 31, 2020 PEUC only available through December 31, 2020
40-52 Extended State Unemployment Compensation (“Extended Duration Award”) Yes, FPUC, but only through July 31, 2020 Certain labor conditions must be satisfied for Extended Duration Awards

We recognize that the overlap of these laws is very important to understanding the precise benefits employees will receive if they need to access them. LCW attorneys can help you with questions about these important benefits.

Employees who are eligible for Emergency Paid Sick Leave (“EPSL”) under the Families First Coronavirus Response Act (“FFCRA”) may also file a claim for Paid Family Leave (“PFL”), a benefit established under California law. PFL provides 60-70% wage replacement benefits for up to 6 weeks (8 weeks effective July 1, 2020) in a 12-month period for eligible employees who need to take time off work to care for a seriously ill family member or bond with a new child. (Unempl. Ins. Code, § 3303(a).) Given the similarities between EPSL and PFL, we have received numerous questions regarding how one may affect the other. This bulletin serves to provide practical guidance on how employers should handle those situations where an employee seeks benefits under both laws.

PFL is a benefit provided by the State Disability Insurance (“SDI”) program and administered by the Employment Development Department (“EDD”). (Overview of California’s Paid Family Leave Program at pp. 5-6.) It is only available to those employees whose employers participate in SDI or have adopted a Voluntary Plan. (EDD “FAQs – Paid Family Leave Eligibility”; EDD “FAQs – Voluntary Plan”.) Thus, employers do not determine an employee’s eligibility for PFL or the amount of PFL benefits. Further, EDD now pays PFL benefits to employees directly by issuing a debit card, eliminating the need for employers to advance PFL benefits. Once an employee has filed a claim for PFL with EDD, employers will receive a Notice of Paid Family Leave Claim Filed (form DE 2503F). Employers must complete and return the form within two business days. (EDD “Employer Requirements”.)

Employers are likely to have processed an employee’s leave as EPSL before receiving notice that an employee has also filed a claim for PFL. Employees are required to file a claim within 41 days of first taking leave, and it takes about 14 days for EDD to determine eligibility after receiving a claim. (Unempl. Ins. Code, § 3301(e); Overview of California’s Paid Family Leave Program at pp. 11, 18.) When responding to a Notice of Paid Family Leave Claim Filed for an employee who is on EPSL, employers should report EPSL payments as wages on question 6 of form DE 2503F. (Overview of California’s Paid Family Leave Program at p. 13; Sample DE Form 2503F Question 6.) Employees should also report EPSL pay as wages when they file a claim. (EDD “Reporting Your Wages”; Form DE 2501F Instructions at p. 3.)

Employees who continue to receive wages while on PFL will have their PFL benefit amount reduced so that that the total does not exceed their regular wages (not including overtime). (Unempl. Ins. Code, § 2656(a).) Courts have held, and EDD forms reflect, that paid sick time constitutes “wages.” (Cooper v. Unemployment Ins. Appeals Bd. (1981) 118 Cal.App.3d 166 [sick time benefits provide under collective bargaining agreement constitutes wages]; Barret v. Unemployment Ins. Appeals Bd. (1961) 190 Cal.App.2d 854; DE 2530 at p. 13; e.g., Overview of California’s Paid Family Leave Program at p. 13; Sample DE Form 2503F Question 6.) In addition, PFL benefits will be reduced by the amount of “’other benefits’ in the form of cash payments” an employee receives while on leave. (Unempl. Ins. Code, § 2629.) The statute defines “other benefits” as:

 

(1) Temporary disability indemnity under a workers’ compensation law of this state or of any other state or of the federal government.

(2) Temporary disability benefits under any employer’s liability law of this state or of any other state or of the federal government.

(3) Permanent disability benefits for the same injury or illness under the workers’ compensation law of this state, any other state, or the federal government. (Id. at subd. (b).)

EPSL most likely constitutes paid sick time, which is considered “wages.” (Cooper v. Unemployment Ins. Appeals Bd. (1981) 118 Cal.App.3d 166; Barret v. Unemployment Ins. Appeals Bd. (1961) 190 Cal.App.2d 854.) FFCRA refers to EPSL throughout as “paid sick time” (see FFCRA Sec. 5102), and there is no authority limiting the types of paid sick leave that may be considered “wages” for purposes of PFL.

If an employee is already on PFL, the Department of Labor guidance suggests that the employee is most likely not eligible for EPSL. (See DOL Q&A #76.) However, this is not addressed in the regulations, and an employer that fails to provide EPSL as provided in the FFCRA may be liable for failure to pay minimum wage under the Fair Labor Standards Act. (29 CFR § 826.150(a).) Thus, there is risk in denying EPSL to an employee on PFL. Employers that agree to provide EPSL to employees on PFL should advise employees to report the income to EDD. (See Form DE 2501F Instructions at p. 2.) An employee’s failure to report wages could result in overpayment, penalties, and a false statement disqualification. (EDD “Reporting Your Wages – PFL”.)

Alternatively, an employee may choose to terminate PFL by filing a Notice of Change in Claimant Status on the Notice of Automatic Payment – PFL (form DE 2587F) with EDD prior to going on EPSL.

 

Coordination/Integration of Benefits

“Integration or coordination of Disability Insurance (DI) or PFL benefits is a process in which the full DI or PFL weekly benefit amount is paid to the employee and the employee is also paid wages from you or using the employee’s available leave to cover the difference.” (EDD FAQ Integration and Coordination.) PFL coordination is a voluntary benefit that employers may choose to offer to supplement an employee’s PFL benefits to reach 100% compensation.

If an employer has adopted a policy of coordinating SDI/PFL benefits, the extent to which EPSL will supplement PFL will be determined by the terms of the policy. Any wages, including EPSL, that are coordinated to supplement PFL should be reported as “wages” on the Notice of Paid Family Leave Claim Filed. (EDD FAQ Integration and Coordination.)

Note: This is the first of a two-part series concerning federal unemployment assistance.

On March 27, 2020, President Donald J. Trump signed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) into law. Under that Act, the federal government established two programs to expand unemployment assistance to workers who lose their jobs or work hours due to the COVID-19 pandemic.

The first program, the Federal Pandemic Unemployment Compensation (“FPUC”) program, provides eligible individuals with $600 per week in federal unemployment compensation to supplement the unemployment compensation provided by the state. The second program, the Pandemic Unemployment Assistance (“PUA”), expands unemployment coverage beyond the time period provided by state unemployment.

The purpose of this bulletin is to explain the FPUC program, and, in a forthcoming bulletin, we will examine the PUA program. In this bulletin, we will examine the operation of the FPUC program, the interplay between the program and state unemployment insurance, and its interaction with leave and compensation provided for under the Families First Coronavirus Response Act (“FFCRA”), which we discussed in a previous bulletin.

Most importantly and immediately, employers that are considering reducing employees’ work hours need to understand how the FPUC program operates, so that they do not, in trying to schedule additional hours for their employees, inadvertently disqualify those same employees from receiving the $600 weekly benefit from the federal government.

Federal Pandemic Unemployment Compensation (“FPUC”)

Section 2104 of the CARES Act creates the Federal Pandemic Unemployment Compensation (“FPUC”) program. The program takes effect once a state enters into an agreement with the Secretary of Labor to provide FPUC funds, and expires on July 31, 2020. As of March 28, all states, including California, executed agreements with the Department of Labor (“DOL”), the federal agency responsible for administering the program, to provide FPUC funds.

As provided above, the FPUC program provides $600 in weekly federal assistance to eligible and qualified individuals who receive state unemployment compensation.  Individual states, which provide such compensation directly to affected individuals, are entitled to full reimbursement from the federal government for the funds provided as part of the program

On April 4, DOL issued a program letter providing guidance concerning operation of the program. This guidance is essential reading for all public employers, but particularly those that are or may be considering reducing employees’ work hours in response to the present public health emergency. The difference between an employee qualifying to receive the $600 in federal assistance may be as little as an extra hour of scheduled work time, so it is imperative that employers understand this guidance and act accordingly in order to enable their employees to receive the maximum amount of compensation.

DOL Guidance Regarding FPUC

In its guidance, DOL provides that “[i]f the individual is eligible to receive at least one dollar ($1) of underlying [state unemployment compensation] benefits for the claimed week, the claimant will receive the full $600.” (Appendix 1, Sec. 4.D.a.)

Therefore, in order to determine an individual’s eligibility for the receipt of FPUC funds, the individual must determine their eligibility to receive state unemployment compensation. Further, the employer of an employee on reduced work schedule should also need to examine the employee’s unemployment insurance eligibility in order to understand applicable work schedule limitations.

Eligibility for State Unemployment Compensation

In California, most public employees are eligible to receive state unemployment compensation by virtue of their service for a public agency, which makes regular contributions to the state unemployment compensation fund on behalf of its employees. Note that some public employers self-fund their unemployment insurance and therefore may be ineligible for FPUC funds as a result.

In order for an individual to qualify for receipt of state unemployment compensation, the individual must be “unemployed” and must have earned at least the minimum amount of compensation in the statutory “base period” as the Unemployment Insurance Code defines those terms.

Qualifying as “Unemployed” under State Law

An individual is considered “unemployed” in any week in which the individual meets either of the conditions below:

(1)   Any week during which he or she performs no services and, with respect to which, no wages are payable to him or her; or

(2)   Any week of less than full-time work, if the wages payable to him or her with respect to the week, when reduced by twenty-five dollars ($25) or 25 percent of the wages payable, whichever is greater, do not equal or exceed his or her “weekly benefit amount.”

Therefore, an individual who loses their job entirely would qualify for state unemployment compensation, and an individual who loses work hours such that they are no longer working full-time may qualify subject to other requirements.

In order to ascertain whether an individual who has their work hours reduced would qualify, the individual and their employer must first determine the employee’s “weekly benefit amount” and then, based on the “weekly benefit amount,” the maximum amount of wages that the employee could earn during a week and still qualify to receive at least one dollar ($1).

Under the Unemployment Insurance Code, weekly benefit amounts range from $40 to $450 dollars depending on the employee’s highest income in any single calendar quarter (i.e., three-month period) during the four calendar quarters (i.e., one-year period) preceding the employee’s eligibility to receive such compensation.  Eligible individuals who earn $11,700 or more in the highest grossing quarter qualify for a maximum of $450 in unemployment compensation. Note: Employees should confer with the Employment Development Department’s (“EDD”) fact sheet on the use of standard base periods and alternate base periods in order to determine their compensation and thus their weekly benefit amount.

While the calculation of the employee’s weekly benefit amount is integral, it is only half the equation because the statute provides that the employee qualifies as “unemployed” if the “wages payable … when reduced by twenty-five dollars ($25) or 25 percent of the wages payable, whichever is greater, do not equal or exceed his or her weekly benefit amount.” Most employees, even on reduced schedules, will earn in excess of $100 per week, in which case, the percentage-based test will control.

Calculating Maximum Wages Payable for Employees on Reduced Work Schedules

Using the percentage-based test, in order to calculate the maximum amount of wages payable that will still permit the employee to qualify for unemployment compensation, the employee and/or employer should use the following formula:

Employee’s weekly benefit amount multiplied by four (4) and then divided by three (3).

For example, for an individual who made $60,000 in the preceding year (or $15,000 in the highest quarter), the following equation would apply to determine the ceiling on wages payable in a week:

($450 x 4) / 3 = $600

Therefore, in order to qualify for state unemployment compensation, the employee in this example would have to earn less than $600 per week. The employee and employer would need to then determine how many hours at the employee’s wage rate the employee could work in order while not exceeding such ceiling.

Assuming that the employee earns less than the maximum permissible amount, EDD will provide the employee the difference between the income that the employee earned, when reduced by 25 percent, and the employee’s weekly benefit amount.

If the employee receives any unemployment compensation from the state, the employee will be entitled to the full $600 for that week from the federal government under the FPUC program.

However, if the employee’s compensation exceeds the applicable cap, the employee will not receive any funding from the state nor will the employee be eligible to receive any compensation under the FPUC program.

Because these are somewhat complicated calculations and the stakes are high, we recommend that employers confer with counsel on reduced work hour scheduling that is intended to provide compensation to the employee through work performed and under the FPUC program.

Below is a chart with four examples of how these calculations would apply in practice:

Employee Salary Hourly Salary Weekly Benefit Amount Weekly Wage Ceiling Approximate Hours Per Week before Ceiling
$40,000 $19.23 $385 $513 26
$60,000 $28.85 $450 $600 20
$100,000 $48.08 $450 $600 12
$150,000 $72.11 $450 $600 8

 

May an Employee Who Receives Families First Coronavirus Response Act Leave and Compensation Also Qualify to Receive FPUC?

A related question concerns the eligibility and qualification for those individuals who receive compensation under FFCRA to receive state unemployment compensation and FPUC. Unfortunately, the answer to this question is not clear at this time.

On March 26, one day before President Trump enacted into law the CARES Act, DOL issued informal and non-binding guidance concerning the receipt of unemployment compensation and FFCRA compensation. DOL stated: “If your employer provides you paid sick leave [under the Emergency Paid Sick Leave Act] or expanded family and medical leave [under the Emergency Family and Medical Leave Expansion Act], you are not eligible for unemployment insurance.”

However, when DOL issued its binding regulations concerning FFCRA leave and compensation on April 1, those regulations were silent as to the receipt of unemployment compensation. In other words, the Department did not state that the receipt of FFCRA compensation would preclude receipt of unemployment compensation.

Furthermore, EDD does expressly restrict receipt of unemployment compensation where the individual received compensation under FFCRA. It is likely that EDD would treat FFCRA compensation comparable to paid sick leave, which EDD counts against an individual’s maximum weekly compensation amount in order to determine whether the individual qualifies for unemployment compensation.

We will provide additional information on this subject when information becomes available from DOL or EDD.

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.