5 Tips for California Employers Facing COVID-19 Concerns

 

By Katherine S. Catlos March 23, 2020
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Many employers are confused about how to answer coronavirus-related questions from employees—particularly after Gov. Gavin Newsom issued a "shelter-in-place" order requiring residents to stay at home unless they are conducting essential business. The order follows several similar ordinances at the county level and is meant to curb the spread of COVID-19, the respiratory disease caused by the coronavirus. 

Whether you are an "essential business" exempted from these orders and trying to hire and retain workers to maintain operations, or unfortunately, having to lay off employees due to lack of customers, here are some key issues to keep in mind when navigating COVID-19's impact on the workplace.

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Coronavirus and COVID-19

1. Promote Safe and Healthy Work Environments

If you operate an essential business that is exempted from the shelter-in-place order, you should continue to implement health and safety protocols suggested by the California Division of Occupational Safety and Health (known as Cal/OSHA). Suggested practices aimed at protecting against bacteria and viruses include:

  • Encouraging sick employees to stay home.
  • Sending employees with acute respiratory illness symptoms home immediately.
  • Providing information and training to employees on cough and sneeze etiquette, hand hygiene, and the like.

To the greatest extent feasible, essential businesses must comply with "social-distancing" requirements, particularly when customers are standing in line. Some Trader Joe's stores, for example, are allowing customers in only when others exit. 

The shelter-in-place orders require social distancing of at least six feet from other individuals, no gatherings of more than 10 people at any time, washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer, covering coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands. These rules are practically and medically grounded to prevent the spread of the virus.

2. Advise Employees of Available Company and State Benefits

In addition to implementing telecommuting policies where feasible, employers should update handbooks for relevant information regarding paid sick leave, paid time off (PTO), vacation time, family leave and other leaves of absence. Employers should also inform employees about potential benefits available through California's insurance programs, state disability insurance, paid family leave and unemployment insurance.  What employees are entitled to can be confusing, so the California Labor Workforce & Development Agency has published a helpful chart of available resources.

3. Don't Use Layoffs to Eliminate Poor Performers

While a reduction in force triggered by the impact of COVID-19 may provide a legitimate business reason for laying off workers, employers are wise to continue with coaching and discipline to remedy poor performance. Judges and juries typically do not look kindly on "layoffs of but one person," unless there are extenuating circumstances.

If you are furloughing a class of employees, be mindful of equal employment opportunity implications so that decisions do not disparately impact workers based on a protected category, such as age, race or sex. 

4. Stay in Your Lane

The impact of COVID-19 triggers many different employment laws. Each law should be analyzed in its own lane. For example, the Family Medical Leave Act (FMLA) applies to employers with 50 or more employees. The emergency Families First Coronavirus Response Act (FFCRA), which was signed into law on March 18, applies to employers with fewer than 500 employees and requires covered businesses to provide their employees with paid sick or family leave for specified reasons related to COVID-19.

Even if an employee isn't eligible for or exhausts leave under the FFCRA or FMLA, California employees are also protected by the Fair Employment and Housing Act, which may require additional leave as an accommodation. This may be the same with other states.

Whether to deduct pay from an exempt employee also triggers both federal and state wage and hour laws. The Fair Labor Standards Act (FLSA) requires employers to pay full salary to an exempt employee performing any work during a given workweek. In California, deductions from salary for absences of less than a full day for personal reasons or for sickness are not permitted. If an exempt employee works any portion of a day, there can be no deduction from salary for a partial day absence for personal or medical reasons.

Federal regulations allow partial day deductions from an employee's sick leave bank so that the employee is paid for their sick time by using their accrued sick leave.

Employers must be careful when furloughing exempt employees so that they continue to pay them on a salary basis and do not jeopardize their exempt status under the FLSA and state wage and hours laws. An employer who elects to have exempt employees work four days instead of five per week cannot simply pay them 80 percent of their salaries for these weeks because short-term changes can endanger the employees' exempt status. 

However, a prospective "permanent" change in hours with a corresponding reduction of salary is permissible. The California Division of Labor Standards Enforcement approved an employer's proposal to reduce its exempt employees' scheduled workdays from five to four days per week—with a corresponding reduction in salary—to address significant but temporary economic difficulties, with an understanding that the employer would restore the full five-day work schedule and full salaries when conditions improved.

Typically, employers may require exempt staff to take vacation accruals or PTO in the case of an office closure due to COVID-19, whether for a full- or partial-day absence, so long as the exempt employee receives his or her full guaranteed weekly salary. If the exempt employee does not have sufficient vacation time or PTO available, the employee must still receive the full guaranteed salary for any week in which he or she performs any work in order to maintain the employee's exempt status. 

The exempt employee does not have to be paid for any workweek in which no work is performed.  But cross-reference your employee handbook to confirm you have not offered more generous benefits.

5. Be Mindful of Wage and Hour Laws

If you are mandating telecommuting, consider California Labor Code Section 2802, which requires employers to pay for business expenses, such as cell phones, Internet usage and the like. Keeping time records is ideal to ensure compliance with meal and rest break laws as well as overtime and minimum wage requirements.

If you intend to layoff or furlough staff, even temporarily, be prepared to provide employees with a final paycheck that includes all wages owed, including accrued and unused vacation. Also provide the requisite Notice of Change in Relationship form and the For Your Benefit Booklet so employees can apply for unemployment compensation insurance benefits. Note that the Employment Development Department has waived the one-week waiting requirement for unemployment benefits. 

Lastly, layoffs of 50 or more may trigger Worker Adjustment and Retraining Notification (WARN) Act notices, though Gov. Gavin Newsom has suspended the 60-day notice requirement under California WARN, since many businesses will need to close quickly to curb the spread of COVID-19.

Katherine S. Catlos is the chief diversity and inclusion officer and an attorney with Kaufman Dolowich & Voluck in San Francisco where she focuses her practice in the areas of employment law and privacy.

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