As employers continue to brace for the full impact of COVID-19 on their operations, Hopkins & Carley is working diligently to track recent developments and changes in the law that will affect your workplace. This update addresses the following: (1) Governor Newsom’s March 19, 2020 Executive Order restricting business operations; (2) Changes to the Cal-WARN Act requirements for advance notice of mass layoffs, relocations, or termination; (3) Guidance from the EEOC addressing employee wellness concerns; and (4) The Emergency Paid Sick Leave Act and the Emergency Family Medical Leave Act signed by President Trump on March 18, 2020.
Please keep in mind that the legal landscape is changing daily, and those changes will likely affect the information provided below. Our Employment Law Department is here to help.
California’s “Stay Home” Order:
On March 19, 2020, Governor Newsom signed Executive Order N-33-20, ordering that all residents to stay home except as needed to maintain continuity of operations of 16 designated federal critical infrastructure sectors because of the importance of these sectors on Californians’ health and well-being. Individuals working in these 16 sectors may continue their work, but all others are advised to stay home. The 16 sectors are identified as:
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More information about the scope of each sector can be found here. It is imperative for employers to determine whether their current business operations fall within one of the designated sectors, and if not, begin planning for either telecommuting work (where feasible) or a reduction in operations. Employers should also continue to abide by local quarantine/shelter-in-place orders, which are more restrictive than the Governor’s order in some respects.
Cal-WARN Act and Reducing Operations:
On March 17, 2020, Governor Newsom signed Executive Order N-31-20, suspending advance notice provisions under California law for mass layoffs, relocations, or terminations (the “Action”). Under the Executive Order, employers are not required to give 60 days’ advance notice of an Action, provided the following conditions are satisfied:
- The employer gives written notice of the layoff, relocation, or termination to (a) employees affected by the Action, (b) the Employment Development Department (EDD), (c) the local workforce investment board, and (d) the chief elected official of each city and county government within which the Action occurred.
- The employer gives as much notice as practicable and, at the time notice is given, provides a brief statement of the basis for reducing the notification period.
- The Action must be caused by COVID-19 related “business circumstances that were not reasonably foreseeable as of the time that notice would have been required.”
- The written notice of the Action provided to the individuals in section 1.(a) above (if issued after March 17, 2020) must include the following statement: “If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at labor.ca.gov/coronavirus2019.”
Addressing Employee Wellness Concerns:
The EEOC has clarified that although the Americans with Disabilities Act (ADA) and Rehabilitation Act continue to apply, they do not interfere with or prevent employers from following the CDC guidelines, or those of state/local public health authorities. The EEOC answered the following specific questions. Note, however, that this is based on current CDC guidance, and thus is subject to change if the CDC guidance changes.
- How much information may an employer request for an employee who calls in sick? The employer may ask if the employee is experiencing symptoms of COVID-19. All medical information must be kept confidential.
- Can an employer take the body temperature of an employee? Yes, but it is limited to the COVID-19 pandemic.
- Can an employer require an employee with symptoms to stay home? Yes.
- Can the employer require a doctor's note certifying fitness for duty before allowing the employee to return? Yes, but given health care professionals are operating over capacity and it may be difficult for an employee to obtain a doctor’s note, employers may consider alternate options such as reliance on local clinics to provide a form, a stamp, or an e-mail.
- If an employer is hiring, can it screen applicants for symptoms of COVID-19? Yes, as long as it does so for all entering employees in the same type of job.
- Can the employer delay the start date or rescind the offer if the employee has COVID-19 or symptoms of it? Yes.
Emergency Paid Sick Leave Act:
On March 18, 2020, President Trump signed into law the Emergency Paid Sick Leave Act. The Act requires employers who have fewer than 500 employees and who are subject to the Fair Labor Standards Act (which includes most employers) to provide every employee (no matter how long they have been employed) with two weeks of paid sick leave that can be used when the employee is unable to work for any of the following 6 reasons:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2);
- The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; or
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
At present, the Act takes effect on April 2, 2020, and expires on December 31, 2020.
The Act places monetary caps on compensation for certain uses of paid sick leave. For employees using sick leave under reasons (1), (2), or (3), employers can cap payments at $511 per day and $5,110 in the aggregate. For employees using sick leave under reasons (4), (5), or (6), employers can cap payments at $200 per day and $2,000 in the aggregate.
Employers will be required to post a Secretary-of-Labor-approved notice, which is expected to be available by March 25, 2020.
Emergency Family Medical Leave Expansion Act:
On March 18, 2020, President Trump also signed into law the Emergency Family Medical Leave Expansion Act. The Act requires employers who have fewer than 500 employees and who are subject to the Fair Labor Standards Act (which includes most employers) to provide certain employees with 12 weeks paid, job-protection leave. The leave is limited to situations where the employee is unable to work (or telework) due to a need to care for their son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to an emergency with respect to COVID-19 declared by a Federal, State, or local authority.
At present, the Act takes effect on April 2, 2020, and expires on December 31, 2020.
Only employees who have been employed for at least 30 calendar days may take leave under this Act.
The first 10 days of this leave can be unpaid, although an employee may elect to substitute accrued vacation leave, personal leave, or medical or sick leave for this initial unpaid leave period if they desire. After the initial 10-day period, the employer must pay the employee at a rate of not less than two-thirds of the employee’s “regular rate of pay” for an amount of hours the employee would otherwise normally be scheduled to work. Compensation for the paid leave required by this Act is capped at $200 per day, and $10,000 in the aggregate.
The Secretary of Labor has the authority to exempt small businesses (defined as those with fewer than 50 employees) if the required leave would jeopardize the viability of their business. Employers of health care providers or emergency responders may elect to exclude such employees from the provisions of the Act.
Click here for a comprehensive summary of both the Emergency Paid Sick Leave Act and Emergency Family Medical Leave Expansion Act.