CALIFORNIA EMPLOYERS’ GUIDE TO DEALING WITH THE CORONAVIRUS PANDEMIC
These are unprecedented times full of uncertainly and anxiety. There are lots of conflicting stories in the media, but what is undeniable is that people are frightened and want to avoid crowds. Everyone has questions on how to handle the difficult employment issues that arise in a situation like this. We hope this Client Alert answers some of those questions.
We recommend that employers have a policy in place and treat everyone consistently. Do not make determinations of risk based on race or country of origin and, like all other confidential health-related information, be sure to maintain the confidentiality of people with confirmed COVID-19 aka the Coronavirus.
The policy should include the following:
· Actively encourage sick employees to stay home. If an employee comes to work exhibiting signs of illness, particularly a cold or cough, you should strongly encourage the employee to go home. If the employee chooses not to, try to physically separate that person from others, such as having them work in a separate office. We do not recommend, at least at this time, forcing employees to go home.
· Consider temporarily expanding your Paid Sick Leave Policy so that employees do not have to choose between calling in sick and being paid. Temporarily suspend the requirement of a healthcare provider’s note, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely manner. As a reminder, employers may not require a doctor’s notes if the employee is
using Paid Sick Leave.
· Allow employees to work from home. Employees may need to stay home to care for children due to school closings, or because their children or other family members are ill. Do not force employees to work from home. Forcing, rather than allowing, employees to work from home can have significant legal implications. Please feel free to call us to further discuss this issue.
· Ensure that you have the information technology and infrastructure needed to support multiple employees who may choose to work from home.
· Place posters that encourage employees to stay home when sick, display cough and sneeze etiquette, and hand hygiene at the entrance to your workplace and in other workplace areas (kitchens, break rooms, etc.) where they are likely to be seen.
· Provide tissues and no-touch disposal receptacles for use by employees.
· Instruct employees to clean their hands often with an alcohol-based hand sanitizer and wash their hands with soap and water for at least 20 seconds. Provide soap and water and alcohol-based hand sanitizers in the workplace. Ensure that adequate supplies are maintained. Place hand sanitizers in multiple locations or in conference rooms to encourage hand hygiene.
· Perform routine cleaning of frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs with cleansers that are confirmed to kill the Coronavirus.
· If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA) and various California state laws.
For employers who require employees to travel, consider the following:
· Suspending all non-essential travel.
· Encourage employees who become sick while traveling to stay home.
· Encourage video meetings and conferences.
· Confer with clients, customers and co-workers on the phone rather than in person.
HOW TO PROTECT YOUR EMPLOYEES
Q: SHOULD EMPLOYERS CIRCULATE A CORONAVIRUS POLICY
A: Yes! Please feel free to use the sample policy below as a template.
Our Company is committed to ensuring the health and safety of its employees. In an effort to keep our workforce healthy and maintain normal business operations during the coronavirus pandemic, we have decided to temporarily allow all employees who have the ability and desire to do do, to work from home. Please note that working from home is not a long-term entitlement, but rather is temporary and revocable. While working remotely, employees remain subject to all company policies and performance standards and must meet with their managers to determine best practices for those employees who opt to work from home. Employees will be required to return to work once the crisis subsides or at the Company's discretion, whichever is sooner.
For those employees who must come to work because of the nature of their duties, or who otherwise choose to come to the work site, the Company will encourage any employee who is unwell to stay home. If an employee shows signs of illness, particularly a cold or cough, the Company will strongly encourage the employee to go home. If the employee remains ar work, the Company will take reasonable steps to physically separate that employee from others; for example, having them work in a separate office.
All employees are encourages to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol or wash their hands with soap and water for at least 20 seconds. Soap and water should be used where possible. The Company will provide these soaps and sanitizers (if available) for its employees. Employee should avoid touching their eyes, nose, or mouth with unwashed hands.
All employees should cover their noses and mouths with a tissue when coughing or sneezing (or an elbow or shoulder if no tissue is available). Employees should avoid close contact with people who are sick, sneezing or coughing.
Everyone should clean and disinfect surfaces and objects that people frequently touch.
During this period of uncertainty, the Company will suspend requirement to produce a healthcare provider's note to validate an illness or fitness to return to work.
The Company does not make any health or safety determination, or any other work-related policy, on the basis of race, ethnicity or country of origin.
Q: CAN I FIRE OR DISCIPLINE AN EMPLOYEE WHO REFUSES TO COME INTO WORK BECAUSE THEY ARE AFRAID OF CONTRACTING THE CORONAVIRUS?
A: Yes, but we advise that you consult with counsel before doing so. Employees may only refuse to work when there is a threat of death or serious physical harm.
Currently, most working conditions do not meet this standard despite the World Health Organization labeling the coronavirus as a pandemic.
Q: CAN I FORCE AN EMPLOYEE TO LEAVE WORK IF THEY SHOW SIGNS OF BEING ILL?
A: We do not recommend this. Forcing an employee to go home - rather than simply urging them to go home - could lead to claims of disability discrimination. Further, employers need to make sure they are not treating any particular group or race differently than any other protected class, such as requiring certain employees to stay home while permitting others to come to work.
EMPLOYEE PAY ISSUES
Q: CAN AN EMPLOYEE USE CALIFORNIA PAID SICK LEAVE DUE TO COVID-19 ILLNESS?
A: Yes. If the employee has Paid Sick Leave available, the employer must provide such leave and compensate the employee under California Paid Sick Leave laws. Paid Sick Leave can be used for absences due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee or the employee's family member.
Preventative care may include self quarantine as a result of potential exposure to the COVID-19 if quarantine is recommended by civil authorities. In addition, there may be other situations where an employee may exercise their right to take Paid Sick Leave, or an employer may allow Paid SIck Leave for preventative care. For example, where ther has been exposure to COVID-19 or where the employee has traveled to a high-risk area.
Q: IF AN EMPLOYEE EXHAUSTS SICK LEAVE, CAN OTHER PAID LEAVE BE USED?
A: Yes, if an employee does not qualify to use Paid Sick Leave, or has exhausted sick leave other leave may be used. If there is a vacation or paid time off policy, an employee may choose to take such leave and be compensated provided that the terms of the vacation or paid time off policy allows for leave in this circumstance.
Q: IF AN EMPLOYEE EXHAUSTS SICK LEAVE, ARE THEY ENTITLED TO UNPAID LEAVE DURING THEIR SICKNESS OR TO CARE FOR A FAMILY MEMBER?
A: An employee is exempt if they are paid at least the minimum required salary and meet the other qualifications for exemption. Federal regulations require that employers pay an exempt employee performing any work during a week their full weekly salary if they do not worj the full week because the employer failed to make work available.
An exempt employee who performs no work at all during a week may have their weekly salary reduced.
Deductions from salary for absences of less than a full day for personal reasons of for sickness are not permitted. If an exempt employee works any portion of a day, there can be no deduction form salary for a partial day absence for personal or medical reasons.
Federal regulations allow partial day deductions from an employee's accrued sick leave so that the employee is paid for their sick time by using their accrued sick leave. If an exempt employee has not yet accrued any sick leave or has exhausted all of their sick leave balance, there can be no salary deduction for a partial day absence.
Deductions from salary may also be made if the exempt employee is absent from work for a full day or more for personal reasons other than sickness and/or accident, so long as work was available for the employee, had they chosen to work.
Q: MY HOURLY NON-EXEMPT EMPLOYEE CAME TO WORK TODAY BUT LEFT EARLY AFTER DEVELOPING SYMPTOMS. AM I REQUIRED TO PAY THEM FOR A FULL DAY OF WORK?
A: Generally, no. Nonexempt employees are only paid for the time they work. However, if the employer forces the employee to leave, then an employer must pay the employee reporting time. Reporting time requires the employer to pay an employee for at least half of the hours he/she was scheduled for or usually worked, but never less than two hours pay and never more than four hours pay.
Q: WHAT IF AN EMPLOYEE’S CHILD'S SCHOOL OR DAY CARE CLOSES FOR REASONS RELATED TO COVID-19?
Employees should discuss their options with their employers/ There may be Paid Sick Leave or other paid leave that is available to employees. Employees at work-sites with 25 or more employees may also be provided up to 40 hours of leave per year for specific school-related emergencies, such as the closure of a child's school or day care by civil authorities (see Labor Code section 230.8). Whether that leave is paid or unpaid depends on the employer's paid leave, vacation or other paid time off policies. Employers may require employees use their vacation or paid time off benefits before they are allowed to take unpaid leave but cannot mandate that employees use Paid Sick Leave. However, a parent may choose to use any available Paid Sick Leave to be with their child as preventative care.
Q: CAN I REDUCE EMPLOYEE / BUSINESS HOURS?
A: Yes you can reduce employee hours. However, altering the hours of some employees over others could be viewed as discrimination or retaliation, so consult legal counsel before doing so.
Q: THE VIRUS HAS CAUSED AN ECONOMIC SLOWDOWN THAT HAS FORCED ME TO LAY OFF EMPLOYEES. IS IT OKAY FOR ME TO FIRE EMPLOYEES?
A: Yes Employment in California is presumed to be at-will. This means that either the employer or employee can end the employment relationship at any time, with or without cause. However, firing some employees over others can be considered discriminatory so the best practice would be to consult legal counsel before doing so. Also, depending on the size of your business, you may be subject to certain notice requirements when laying off a large number of employees or closing your business. Consult legal counsel in theses situations before initiating any mass layoff or business closures.
EMPLOYEES WHO TRAVEL Q: CAN AN EMPLOYER REQUIRE A WORKER TO PROVIDE INFORMATION ABOUT RECENT TRAVEL TO COUNTRIES CONSIDERED TO BE HIGH-RISK FOR EXPOSURE TO THE CORONAVIRUS?
A: Yes. Employers can request that employees inform them if they are planning or have traveled to countries considered by the Centers for Disease Control and Prevention to be high-risk areas for exposure to the coronavirus. However, employees have a right to medical privacy, so the employer cannot inquire into areas of medical privacy.
Q: OUR EMPLOYEE RECENTLY CAME BACK FROM TRAVEL IN A HIGH-RISK AREA OR SUSTAINED CONTACT WITH AN INFECTED INDIVIDUAL. CAN WE SEND THIS EMPLOYEE HOME?
A: It depends. Under the federal and California Occupational Safety and Health Act (OSHA), an employer has an obligation to provide a safe and healthy work environment. However, managing illness in the workplace implicates a number of medical and privacy concerns that an employer must balance.
If the employee is not displaying any overt symptoms and is ready and able to perform their job, the employer cannot send them home. On the other hand, if the employee is displaying overt symptoms of cough or cold, the employer should provide them with a separate work location to reduce the chance of transmitting the illness.
The employer can also strongly encourage employees to stay home if they are not feeling well or believe they may be a health threat to their fellow employees.
Employers can also choose to expand Paid Sick Leave options to their employees during these difficult times.
Be sure to never make assessments based on race, ethnicity, or country of origin and be sure to maintain the privacy of employee's medical situations. Employers are restricted by law from inquiring about employee's medical histories, so be extremely careful about asking questions that potentially probe into an employee's medical status, and never reveal the name of an infected employee or reveal private information to your staff.
We hope you find this useful. If you have any questions, please do not hesitate to contact us.