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Posted: May 18, 2020 | News


Individuals asking how to protect themselves and others from COVID-19 have clear and simple guidance from the CDC website (wear a mask, social distancing, wash hands, stay home with symptoms or fever, etc.) But many California employers are feeling overwhelmed as they struggle to determine what they are supposed to do to comply with the law, as they reopen their businesses.  This can be a struggle because the standards are sometimes vague and inconsistent. Where can you get a straight answer?  Here is a sampling of guidance from administrative agencies:

Labor Commissioner Guidance for Employers

The DSLE has issued guidance entitled “Frequently Asked Questions Laws Enforced by the Labor Commissioner”  in relation to COVID-19. This deals with such critical topics as reporting time pay and sick leave.

A key question for employers is whether employees who are quarantined are entitled to sick leave. The Division of Fair Labor Standards and Enforcement’s guidance states that employees are entitled to use available California Paid Sick Leave for COVID-19 illness, but also for “preventative care.” Self-quarantine may qualify as preventative care, if ordered by the governmental authorities.

What happens when an employee uses up his or her sick leave? Employees may be able to use vacation or other paid time off, if the employer’s policies permit it. However, employers may not require quarantined employees to use their paid sick leave. Instead, employers may set a two-hour minimum for each use of paid sick leave.

According to this guidance, employers may not ask about an employee’s medical information, but may ask about recent travel to high-risk countries and may require that employees report such travel.

What About Disruptions Caused by Shutdowns and Supply Chain Failures?

California businesses may see their operations shut down by supply chain disruptions caused by quarantines in Italy, China, Europe and elsewhere.  If a California business tells employees to stay home, what obligations are triggered?  Among other things, reporting time pay requirements may apply even  employees were sent home  due to COVID-19 exposure. This requirement has certain exceptions -- such  as when the stay-home order is caused by a quarantine that is ordered by governmental authorities.

If exempt, salaried employees perform any work during a week in which the company is shut down, they may still be entitled to a full week’s salary—if they were ready and able to work, but did not do so because the employer did not make work available.

EDD Guidance on Wage Replacement and Payroll Disruptions

Along the lines of the DLSE guidelines, the Employment Development Department (“EDD”) also issued guidance for employees. These guideline discussed how employees can replace wages lost due to coronavirus-related absences, through short term disability or unemployment insurance.

Employees may be able to claim short term disability while sick or quarantined or paid family leave while caring for a sick or quarantined family member. In the event of a layoff or hours reduction, employees may also be entitled to UI payments as well.

If you are an employer who has laid off employees or who is considering layoffs or work reductions because of COVID-19, consult programs such as the EDD’s Work Sharing Program.  This program permits employers to reduce employee hours while providing wage replacement through UI, without laying off workers or removing them from the payroll.

The EDD also offers tax assistance to employers affected by COVID-19, including 60-day extensions, to file state payroll reports or to deposit state payroll taxes, without penalty or interest.

CalOSHA’s Advice on Creating Plan to Protect Workers

CalOSHA recently provided guidance on protecting workers from COVID-19 under the Aerosol Transmissible Diseases (ATD) standard. This applies to the healthcare industry and other establishments, where risk of exposure to aerosol transmissible diseases may be higher, such as laboratories, correctional facilities, homeless shelters, and drug treatment programs.

More relevant to COVID-19, CalOSHA has now issued interim guidance to general industry employers on how to protect workers from COVID-19. The guidance takes the position that even employers not covered by the ATD standard must, under the CalOSHA regulatory scheme, protect employees from COVID-19 to the extent the disease is a hazard in the workplace. CalOSHA’s guidance does not make clear whether employers should currently consider COVID-19 a hazard, but the analysis is based on reasonable anticipation. In other words, employers should seriously consider, if they can reasonably anticipate if their  employees are at risk of being exposed to the virus? Given the current COVID-19 risks, CalOSHA clearly believes the answer is “yes” for most employers.

In light of this, what should general industry employers do to protect employees from COVID-19?

CalOSHA’s guidance offers the opinion that general industry employers should implement measures to prevent or reduce infection hazards, such as implementing CDC recommendations, and also training employees on their COVID-19 infection prevention methods.

The CDC’s infection prevention measures include:

· Actively encouraging sick employees to stay home

· Sending sick employees, particularly those with respiratory illness symptoms, home immediately

· Training employees on important topics such as:

· Hand hygiene

· Cough and sneeze etiquette

· Avoiding close contact with sick persons

· Avoiding touching eyes, nose, and mouth with unwashed hands

· Avoiding sharing personal items with coworkers

· Checking the CDC’s Traveler’s Health Notices

· Providing tissues, no-touch disposal trash cans, and hand sanitizer for use by employees

· Performing routine environmental cleaning of shared workplace equipment and furniture

In addition, CalOSHA encourages employers to implement the CDC’s recommendation for creating an infectious disease outbreak response plan. Such plans may include canceling group activities or events, increasing telecommuting opportunities, and other methods of minimizing exposure among employees (and with the public).

The CalOSHA guidance stresses that employer responsibility for addressing the COVID-19 hazard arises from the CalOSHA Injury Illness Prevention Plan standard (8 CCR 3203). Thus, CalOSHA will argue that an employer’s failure to address the potential COVID-19 hazard could result in liability. The guidance also suggests that certain employers may be required to provide Personal Protection Equipment (PPE) under the CalOSHA PPE standard (8 CCR 3380) or to implement administrative and engineering controls under the Control of Harmful Exposures standard (8 CCR 5141).

This CalOSHA stance is obviously of keen significance because CalOSHA is suggesting that some general industry employers may have to provide respirators, such as N95 masks. Yet employers cannot distribute these masks, without implementing procedures such as medical clearance and fit testing. If an employer is considering the use of respirators in the workplace or have employees who wish to wear them on their own accord, the employer should seek attorney guidance.   (NOTE: Surgical masks are not considered respirators and therefore are not subject to CalOSHA regulatory requirements. But the guidance reminds employers that surgical masks do not protect persons from airborne infectious diseases and cannot be relied upon for novel pathogens.  Thus, to the extent employers should provide masks, the surgical masks may not protect the employer from liability the way that a respirator (such as N95 masks) will provide protection.

The guidance also highlights some risks for employers. For example, the CDC guidance encourages employers to inform fellow employees when an employee has been exposed to COVID-19. Yet employers must be cautious and maintain confidentiality consistent with the requirements of the Americans with Disability Act (“ADA”) and California laws. As highlighted by the DLSE guidance above, employers must not ask about medical information and should be careful in addressing concerns (and suspicions) about an employee’s health, symptoms, or potential exposure to COVID-19.

Other Guidance

Other California agencies are working to provide guidance for employers, as well as various federal and local agencies. These guidelines will evolve and be updated over time. If you have questions about how your business can comply with these directives, please give us a call. The attorneys at North & Nash LLP have decades of experience advising California businesses on employment law and a wide range of legal issues.    

Author: Partners at North & Nash LLP