Insights

2.07.22

Published by Fisher Phillips

Authors: Ben Ebbink, Hannah Sweiss

Responding to pressure from labor amidst the Omicron variant, California lawmakers and Governor Newsom are on the cusp of enacting new COVID-19 supplemental paid sick leave (SPSL) that could go into effect in a matter of days.  While the new legislation is similar to California’s prior SPSL (SB 95), which expired September 30, 2021, there are some notable differences this time around. What do California employers need to know about this new supplemental paid sick leave requirement, and how should you prepare?

Which Employers Does the New Law Apply To?

Like SB 95, the new law applies to employers with “more than 25 employees.” Smaller employers will not be covered but may be covered by local supplemental paid sick leave ordinances.

When Will the New Law Be Effective?

The new law is being enacted as a budget bill – AB 84 – which allows the legislature to act more quickly and allows it to go into effect earlier. AB 84 will go into effect 10 days after the date of enactment (meaning the day it is signed by the governor). It is anticipated the legislature will approve AB 84 early this week and the governor will sign it soon thereafter. 

Once in effect, AB 84 applies retroactively to January 1, 2022 – which may necessitate employers making retroactive payments for leave taken dating back to the first of the year upon the oral or written request of an employee.

How Long Will the Law Be in Effect?

AB 84 will be in effect through September 30, 2022. However, an employee taking leave as of that date shall be permitted to take their full amount of leave. Keep an eye on this date because the legislature could vote to extend SPSL further. 

How Much Leave Does the Law Provide?

Like SB 95, the new law provides up to 80 hours of SPSL for full-time employees. However, AB 84 is different in that it establishes two “buckets” of up to 40 hours of leave for different purposes and with different requirements.

Bucket # 1 – Up to 40 Hours for COVID Qualifying Reasons

The first category of leave provides for up to 40 hours of SPSL for a number of COVID-19 related reasons. These correspond generally with the qualifying reasons that previously applied under SB 95. Leave must be provided if the employee is unable to work or telework for any of the following reasons:

• The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace.
• The employee has been advised by a healthcare provider to isolate or quarantine due to COVID-19.
• The employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19.
• The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevent the employee from being able to work or telework.
• The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
• The employee is caring for a family member who is subject to an order or guidance described above or who has been advised to isolate or quarantine, as described above.
• The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

AB 84 imposes a potential limitation on the leave that must be provided for vaccine or boosters. Specifically, an employer may limit the total leave to three days or 24 hours. If more leave is requested by the employee, the employer may require that an employee provide verification from a healthcare provider that the employee or their family member is continuing to experience symptoms related to a COVID-19 vaccine or vaccine booster.

The potential three-day or 24-hour limitation applies to each vaccine or vaccine booster and includes the time used to obtain the vaccine or vaccine booster.

Bucket # 2 – Up to an Additional 40 Hours for Positive COVID-19 Tests

The second category of SPSL entitles an employee to the same amount of leave they qualified for under the first category (up to 40 hours) if the employee tests positive for COVID-19, or a family member for whom the employee is providing care tests positive for COVID-19.

Significantly, AB 84 authorizes the employer to require proof of a positive test in such situations.

• First, if the employee tested positive, an employer may require the employee to submit to a diagnostic test on or after the fifth day after the initial test was taken and provide documentation of those results. AB 84 specifically states that the employer shall make such a test available at no cost to the employee.
• Second, if the employee requests to use additional leave because a family member for whom they are providing care tests positive for COVID-19, the employer may require that the employee provide documentation of that family member’s test results before paying the additional leave.

AB 84 specifically provides that an “employer has no obligation to provide additional COVID-19 supplemental paid sick leave…for an employee who refuses to provide documentation of the results of the test…upon the request of the employer.”

How Much Leave Must Be Provided to Part Time Employees or Those with Variable Schedules?

AB 84 provides a specific method for calculating the amount of eligible leave for employees who work part time or have variable schedules. This methodology tracks the process that was utilized under the previous SB 95:

• If the employee has a normal weekly schedule, their eligible leave the total number of hours the employee is normally scheduled to work for the employer over one week.
• If the employee works a variable number of hours, they are entitled to seven times the average number of hours the employee worked each day for the employer in the six months preceding the date the covered employee took COVID-19 supplemental paid sick leave. If the employee has worked for the employer over a period of fewer than six months but more than seven days, this calculation shall instead be made over the entire period the employee has worked for the employer.
• If the employee works a variable number of hours and has worked for the employer over a period of seven days or fewer, the employee is entitled to the total number of hours the covered employee has worked for that employer.

Employers should note that this methodology determines the amount of leave the employee is entitled to under Bucket # 1. As discussed above, the employee would then also be eligible for the same amount of leave under Bucket # 2.

How Do You Calculate the Regular Rate of Pay?

The regular rate of pay is different under AB 84 compared to its prior iteration. Under the prior SB 95, employers had to utilize the rate of pay that was the highest under several different calculations. AB 84 instead defines regular rate of pay more in line with the methodology under regular paid sick leave, which allows employers to choose among a number of methods.

For nonexempt employees, the regular rate of pay is determined by one of the following:

• Calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek; or
• Calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment; provided that, for nonexempt employees paid by piece rate, commission or other method that uses all hours to determine the regular rate of pay, total wages, not including overtime premium pay, shall be divided by all hours, to determine the correct amount of COVID-19 supplemental paid sick leave.

SPSL for exempt employees is calculated in the same manner as the employer calculates wages for other forms of paid leave time. Like the prior law, the new legislation caps the amount of leave required to be paid at $511 per day and $5,110 in the aggregate.

What Are the Retroactive Requirements?

Once effective, AB 84 will be retroactive to January 1, 2022. So, if an employee took leave dating back to the first of the year for one of the qualifying reasons that was either unpaid by the employer or not paid at the same level required by AB 84, the employee may make an oral or written request for retroactive payments.

A similar process was included in the prior SB 95, so employers should generally be familiar with this process. Retroactive payments must be paid on or before the payday for the next full pay period after the request is made.

In addition, AB 84 provides that an employer may require an employee to provide documentation of a positive test if the employee requests retroactive leave for a positive test or caring for a family member with a positive test.

How Does SPSL Interact with Cal/OSHA Exclusion Pay?

An unwelcomed change under AB 84 involves how SPSL interacts with “exclusion pay” under Cal/OSHA’s ETS. Employers are no longer allowed to require employees to first use and exhaust their SPSL during periods the employee is entitled to exclusion pay.

Previously, an employer was allowed to require an employee to use SPSL before being obligated to pay exclusion pay under Cal/OSHA’s ETS. However, AB 84 takes the opposite approach. The legislation states, “An employer shall not require a covered employee to first exhaust their COVID-19 supplemental paid sick leave under this section before satisfying any requirement to provide paid leave for reasons related to COVID-19 under any Cal-OSHA COVID-19 Emergency Temporary Standards.”

With certain exceptions, Cal/OSHA’s ETS requires employers to continue to pay the earnings of employees who are excluded from the workplace as a COVID-19 case or close contact. This means employers may be required to provide significantly more paid time off for employees because employees who are excluded under Cal/OSHA’s ETS will be paid exclusion pay and maintain their full entitlement of SPSL.

How Does AB 84 Interact with Local SPSL Ordinances?

Employers should be aware that there are several local jurisdictions in California with their own SPSL ordinances that did not expire last September. AB 84 provides that an employer may count leave provided under one of these local ordinances toward their obligation under AB 84 as long as the leave was provided for the same reasons and compensates the employee in an amount equal to or greater than the amount of compensation for COVID-19 SPSL under AB 84.

Is There a Notice Requirement?

Employers are required to post a notice about SPSL similar to the notice employers post regarding regular paid sick leave under Labor Code Section 247. AB 84 requires the Labor Commissioner to develop a model notice within seven days of the enactment of the new law. In addition, AB 84 provides that if employees do not frequent a workplace, the employer may provide the notice through electronic means, such as by e-mail.

What Paystub Requirements Apply?

Thankfully, AB 84 takes a different paystub approach from the prior SPSL version. Rather than list the eligible hours, the legislation requires employers to instead list the amount of SPSL the employee has used through the applicable pay period. If an employee has not used any SPSL, the employer shall list zero hours on the paystub. This should reduce the burden on employers from having to make complicated calculations each pay period (as required under the prior law). In addition, AB 84 says SPSL hours used should be listed separately from regular paid sick days.

Are Tax Credits Available to Pay for This?

Not directly. While the governor and legislative leaders have talked up tax credits being part of the agreement to bring back SPSL, the referenced tax credits are not directly tied to SPSL, nor do they provide “dollar for dollar” reimbursement like under the federal FFCRA.

The agreement restores net operating loss deductions for corporate and individual taxpayers with business income of $1 million or more, which had been paused for tax years 2020, 2021 and 2022 and extended by three years. The state will also lift a $5-million limit on several other business tax credits (including for research and development) for those same tax years. Not all businesses are eligible for these tax credits.

So while the state is bringing back some tax credits that may provide general relief for some businesses in the state, there is not a direct tax credit that reimburses employers specifically for their SPSL costs.

Next Steps

Be prepared to quickly comply with this new requirement. To do so, below are some recommended steps:

• Prepare an updated policy.
• Plan for the paystub requirement.
• Keep an eye out for the notice that will be posted by the Labor Commissioner’s office.
• Have a process in place to handle leave requests (both new and retroactive).
• Evaluate the number of retroactive or true-up payments you may need to make.
• Remember not to request any other medical information or underlying diagnosis when requesting documentation to support the leave request.
• Remember that you cannot use SPSL before paying exclusion pay.

Conclusion

We will monitor developments related to paid sick leave and provide updates as warranted, so make sure that you are subscribed to Fisher Phillips’ Insights to get the most up-to-date information direct to your inbox. If you have further questions, contact your Fisher Phillips attorney, the authors of this Insight, or any attorney in any one of our six California offices.

By Benjamin Ebbink, Fisher & Phillips, Hannah Sweiss, Fisher & Phillips, Nicole Kamm, Fisher & Phillips, Abby Harrington, Fisher & Phillips and Julia Sherwood, Fisher & Phillips

On the heels of the CDC’s updated isolation and quarantine guidance reducing the length of time an individual must isolate after contracting COVID-19 and the quarantine period for those exposed to the illness, California has largely aligned these new timeframes – but with a catch. The California Department of Public Health (CDPH) just released updated guidance to conform to the new CDC guidelines but adds additional requirements, including testing to exit isolation or quarantine at Day 5 and improved masking. The December 30 guidance also inserts the issue of booster shots for the first time. What do California employers need to know about the new guidance?

New Isolation and Quarantine Guidance

The new guidance offers revised timeframes and requirements for isolation and quarantine periods that mostly track the new federal guidelines, but does create additional obligations for employers.

Isolation: COVID-19 Cases

All individuals who test positive for COVID-19, regardless of vaccination status, natural immunity, or lack of symptoms, should take the following steps:

• Stay home for at least five days.
• Isolation can end after five days if symptoms are not present or are resolving and a diagnostic specimen collected on Day 5 or later tests negative.
• If unable to test or choosing not to test and symptoms are not present or resolving, isolation can end after Day 10.
• Wear a “well-fitting mask” around others for a total of 10 days.

Quarantine: COVID-19 Exposure

The new CDPH guidance provides two quarantine paths for those who have been exposed to COVID-19, depending on whether the individual has been vaccinated or boosted, if eligible.

1. Unvaccinated or Vaccinated and Booster Eligible, But Not Boosted

   If an individual is unvaccinated or vaccinated and “booster eligible” but has not yet received their booster dose, the following apply:

   • Stay home for at least five days after exposure.
   • Test on Day 5.
   • Quarantine can end after Day 5 if symptoms are not present and a diagnostic specimen collected on Day 5 or later tests negative.
   • If unable to test or choosing not to test and symptoms are not present, quarantine can end after Day 10.
   • Wear a “well-fitting mask” around others for a total of 10 days.
2. Boosted or Vaccinated But Not Yet “Booster Eligible”

   If an individual is boosted or vaccinated but not yet “booster eligible,” the following apply:

   • The individual does not need to quarantine.
   • Test on Day 5.
   • Wear a well-fitting mask around others for 10 days.

When is Someone “Booster Eligible?”

The updated CDPH guidance specifies that someone is “booster eligible” as follows:

• For Moderna or Pfizer-BioNTech – six months after second dose
• For Johnson & Johnson – two months after first dose
• For WHO emergency-use-listed vaccine – six months after getting all recommended doses
• Mix- and-match series – six months after getting all recommended doses

What Does “Well-Fitting Mask” Mean?

The CDPH guidance states that, during the days following isolation or exposure when masks are worn, all persons should optimize mask fit and filtration, ideally through use of a surgical mask or respirator.

What Impact Does This Have on the Cal/OSHA ETS?

As a result of a previous Executive Order signed by Governor Newsom, the new CDPH quarantine and isolation periods will become the default rule under the Cal/OSHA ETS as well. However, there are a couple of important caveats to keep in mind:

• The ETS amendments that go into effect on January 14 require individuals to wear a face covering and maintain six feet of social distance if they are not excluded or return to work. So, while the potential shortened time periods under the CDPH guidance apply, California employers will still need to follow the new social distancing requirements beginning on January 14.
• The CDPH guidance requires testing to return after Day 5, which will be incorporated into the Cal/OSHA ETS as well.
• Employers need to be aware that the CDPH guidance introduces the concept of “boosted” individuals for the first time. This could require more employees to be excluded than contemplated under the ETS (even as amended).
  
  Under the amended ETS, an asymptomatic fully-vaccinated employee does not need to quarantine as long as they wear a face covering and social distance for the given time period. However, the CDPH guidance makes a new distinction between boosted and un-boosted individuals. If an employee is vaccinated and booster-eligible but has not yet received their booster dose, they must stay home for at least five days.
  
  Therefore, while the updated CDPH guidance potentially reduces the quarantine period to five days for some individuals, it will require some vaccinated individuals (those who are booster eligible but have not received the shot) to still stay home for five days. In other words, while the CDPH guidance gives with one hand (reduced time periods), it takes with the other (now requiring some vaccinated individuals to stay home for five days).

• Employers still need to check local quarantine and isolation periods as they may be more restrictive. As noted above, the Executive Order signed by Governor Newsom incorporates “the longer of” CDPH or local quarantine and isolation periods into the Cal/OSHA ETS.
  
  The CDPH guidance specifically notes that “local health jurisdictions may be more restrictive in determining isolation and quarantine recommendations based on local circumstances, in certain higher-risk settings or during certain situations that may require more protective isolation and quarantine requirements (for example, during active outbreaks).”
  
  While we anticipate that most local public health departments will move quickly to adopt the new CDPH guidance, their longer time periods will control until they do so. Before making any changes to adopt the new CDPH guidance, you should first check to verify what local quarantine and isolation periods remain in effect.

Further Clarity from Cal/OSHA in the Works?

This recent development complicates an already-complicated situation as employers are preparing to implement changes to the Cal/OSHA ETS that go into effect on January 14. As discussed above, the interaction between the new CDPH guidance and the Cal/OSHA ETS is complicated. Hopefully, Cal/OSHA will soon issue new guidance or updated FAQs to clarify the landscape for employers. Governor Newsom’s Executive Order requires Cal/OSHA to “promptly provide public notice” of any changes to exclusion or return to work periods. Therefore, it is likely Cal/OSHA will provide further clarity to employers in the coming days.

Conclusion

We will continue to monitor this development and provide updates as warranted. Be sure to attend our upcoming webinar on January 5, which will discuss the upcoming changes to the Cal/OSHA ETS in light of this new development. Fisher Phillips is also updating our Cal/OSHA ETS package to reflect both the new changes to the ETS and the new CDPH guidance. Ask your Fisher Phillips attorney about these documents when available.

Make sure you are subscribed to Fisher Phillips’ Insight system to get the most up-to-date information.  If you have questions about how to navigate this recent development

If you have questions about how to ensure that your vaccine policies comply with workplace and other applicable laws, visit our Vaccine Resource Center for Employers or contact your Fisher Phillips attorney, the author of this Insight, or any attorney on our FP Vaccine Subcommittee.

Register for the FREE webinar on January 5th by clicking here.

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By Abby Harrington, Fisher & Phillips and Julia Sherwood, Fisher & Phillips

California Presses Pause on Implementing New Federal Workplace Vaccine Emergency Rule

California is the latest state to hold off on implementing the newest federal OSHA Emergency Temporary Standard (ETS) in light of the onslaught of legal challenges across the United States. That rule – currently stalled in litigation but poised to potentially be resurrected at any moment – will require covered employers with 100 or more employees to either mandate their workforce receive the COVID-19 vaccination or test them weekly to ensure they are not infected. Depending on what happens with the federal litigation and the current temporary stay of the federal ETS, California’s pause could be short-lived or longer in duration – creating some uncertainty in workplaces across the state for now. What should California employers do in the meantime?

OSHA ETS Faces Legal Challenges

On November 4, the Occupational Safety and Health Administration (OSHA) released a mandate-or-test workplace vaccine emergency rule, which went into effect on November 5. The ETS requires employers with 100 or more employees to either mandate covered employees be fully vaccinated against COVID-19 or require covered employees that are not fully vaccinated to test for COVID-19 at least weekly and wear a face covering.

The ETS immediately faced challenge from across the country. Two days after the announcement, the Fifth Circuit Court of Appeals issued a temporary “stay” that blocked the ETS until it could more closely examine the legality of the rule. On November 12, the Fifth Circuit extended the stay, and ordered OSHA to take no steps to implement or enforce the ETS. Since the original ETS announcement, other challenges have continued to pop up.

A Multidistrict Litigation Lottery held today determined which federal appellate court will hear the combined challenges that have since been filed, and randomly selected the Sixth Circuit Court of Appeals (with courts overseeing Ohio, Michigan, Tennessee, and Kentucky). That federal appeals court will now determine whether the ETS will go into effect – but this legal challenge could ultimately make its way to the Supreme Court.

How Does This Affect California?

The federal OSHA mandate-or-test workplace emergency rule applies to all Federal OSHA states where the government enforces the OSH Act. California has its own state agency, Cal/OSHA, that enforces its safety regulations. Cal/OSHA has 30 days to adopt the federal ETS or alternative regulations that are at least as effective as the ETS.

Originally, the California Occupational Safety and Health Standards Board planned to meet on November 18 to consider adopting the federal ETS “as is” or with unknown additional changes. The Board never published the proposed language, so it is unclear exactly what language was being contemplated. However, given the state of the litigation currently blocking the federal ETS, California has delayed its vote until there is more information about the next litigation steps and the inevitable appeal to the Supreme Court.

What Should Californian Employers Do?

While we wait for more guidance about the new vaccine-or-test rule, the current Cal/OSHA COVID-19 Prevention ETS remains in effect until at least January 14, 2022. This means that employers should continue to follow the Cal/OSHA ETS. For a refresher on the Cal/OSHA ETS, check out our Insight here.

In the meantime, California employers should evaluate and plan for potential compliance with a California vaccine-or-test rule but should wait to implement its measures until there is more certainty from Cal/OSHA. This means that employers who have not already done so, should establish policies for determining employees’ vacation status, obtaining and maintaining proof and evaluating logistics and procedures for tracking weekly test results. For further guidance on the federal ETS, check out Fisher Phillips’ Comprehensive FAQs. 

We will monitor these developments and provide updates as events warrant. Make sure you are subscribed to Fisher Phillips’ Insight system to get the most up-to-date information. If you have questions about how to ensure that your vaccine policies comply with workplace and other applicable laws, visit our Vaccine Resource Center for Employers or contact your Fisher Phillips attorney, the authors of this Insight, any attorney on our FP Vaccine Subcommittee, or any attorney in our California offices.

The article can be found, by clicking here. 

By Jennifer Suberlak, Esq., San Diego SHRM VP of Legislation

Cal/OSHA Adopts New COVID-19 Rules to Take Effect Immediately

              On June 17, 2021, the Occupational Safety & Health Standards Board of California’s Division of Occupational Safety and Health (“Cal/OSHA”) voted to adopt revisions to the COVID-19 Emergency Temporary Standard (“ETS”). Also on June 17, 2021, Governor Gavin Newsom issued an executive order making the revised ETS effective immediately. These regulations closely align with the State’s mask and social distancing guidance for the general public. Here are the highlights of the revised ETS:

Social Distancing Requirements Eliminated

              The revised ETS largely disposes of physical distancing protocols. Social distancing is still required when: unvaccinated employees are eating or drinking; a COVID-19 outbreak occurs; or an unvaccinated employee is unable to wear a face covering or a less restrictive alternative due to a medical condition or disability.

Face Coverings Requirements Relaxed

              Fully vaccinated employees no longer need to wear face coverings indoors, except for the places where California still requires everyone to wear a mask (e.g., while on public transit) or during a COVID-19 outbreak.

Unvaccinated employees must continue to wear face coverings, subject to these exceptions:

• When an employee is alone in a room or vehicle;
• While eating or drinking at the workplace, as long as employees are at least six feet apart and the outside air supply to the area, if indoors, has been maximized to the extent feasible;
• When an employee is wearing a respirator instead of a face covering;
• When the employee cannot wear a face covering due to a medical or mental health condition or disability, or when the employee is hearing impaired or communicating with a hearing impaired person; or
• When the employee is performing specific tasks that cannot be performed while wearing a face covering.

If a workplace suffers a COVID-19 outbreak, all employees must resume wearing face coverings and maintaining social distance, regardless of vaccination status.

New Definition of “Face Covering”

              The revised ETS defines “face covering” as a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers. The following items do not meet the definition of “face covering”: scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.

Respirator Requirements

             Per the updated regulations, employers must make respirators available for voluntary use to employees who are not fully vaccinated and who work indoors or in a vehicle with more than one person. The employer must provide the respirator at no cost to the employee. Employees must also be able to request a respirator without fear of retaliation.

              COVID-19 training must include information about respirators, including the employer’s policies for providing respirators, the right of employees who are not fully vaccinated to request a respirator for voluntary use, how to properly wear a respirator, and how to perform a seal check of a respirator.

Changes to Notice Requirements

              The initial ETS outlines detailed rules for providing notice of exposure to COVID-19. The revised ETS specifies that the employer must provide notice within one business day of the time the employer knew or should have known about a COVID-19 case. The employer must provide notice in writing, in a form readily understandable to employees, that people at the worksite may have been exposed to COVID-19. Acceptable notice may include personal service, email, or text message, as long as the employer can reasonably anticipate the employee will received the notice within one business day of sending. The employer must send the foregoing notice to all employees at the worksite during the high-risk exposure period, to independent contractors and other employers at the worksite during the high-risk exposure period, and to any authorized representatives (e.g., union representatives).

Exclusion of Exposed Employees

              Unlike the original ETS, employers no longer need to exclude an employee who had close contact with a COVID-19 case if the employee is fully vaccinated and does not develop symptoms. Similarly, employers need not exclude COVID-19 cases who have properly returned to work and have remained free of symptoms for 90 days after the initial onset of symptoms (or, if no symptoms developed, 90 days after the first positive test).

Return to Work Rules for Close Contacts

              According to the updated rules, an employee who had a close contact but experiences no symptoms may return 10 days after the date of the last known close contact. If an employee had a close contact but developed symptoms, then the employee may return when: (1) the employee tests negative for COVID-19; (2) at least 10 days have passed since the last known close contact; and (3) the employee has been symptom-free for at least 24 hours without using fever-reducing medication.

              Different rules apply for healthcare workers, emergency responders, and social service workers. During critical staffing shortages, such employees may return after day 7 from the date of last exposure, provided the employees test negative based on a specimen collected after day 5 and the employees do not develop symptoms. 

By Jennifer Suberlak, Esq., San Diego SHRM VP of Legislation

CDC Announces New Mask Guidance for Fully Vaccinated Individuals

According to the Centers for Disease Control and Prevention (“CDC”), fully vaccinated individuals can resume pre-pandemic activities, whether indoors or outdoors, without wearing a mask or physically distancing—unless federal, state, or local laws or workplace guidance require otherwise. Currently, the California Department of Public Health, Cal/OSHA, and the San Diego Department of Health & Human Services mandate the use of face coverings when indoors, regardless of vaccination status. Therefore, San Diego employers must continue to enforce face covering requirements in the workplace for the time being.

The CDC’s new rules will likely prompt similar mask guidance from state and local authorities in the coming weeks.

Notably, Cal/OSHA’s emergency temporary standard (“ETS”) is set to expire on May 31, 2021. The ETS requires employers to, among other things, maintain a written COVID-19 prevention program, create procedures for responding to positive cases in the workplace, train employees about protective measures, ensure social distancing and mask wearing, and exclude exposed employees from the workplace. Cal/OSHA has recently proposed revisions to the ETS to account for the workplace changes brought on by wide scale vaccination. Key proposed changes to the ETS include:

• Clarification that the ETS does not apply to employees working remotely from a location of their choice;
• Redefining “close contact” to exclude people wearing respirators under a respiratory protection program;
• Focusing on an “exposed group” of workers where a COVID-19 case was present during the high-risk exposure period, instead of an “exposed workplace”;
• Excluding from the definition of “face covering” “a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric”;
• Requiring exposure notices when the employer knows or should know about a COVID-19 case;
• Relaxed social distancing requirements for fully vaccinated employees; and
• Eliminating the requirement to exclude fully vaccinated employees from the workplace after a “close contact.”

The Cal/OSHA Standards Board is scheduled to consider the proposed changes at its May 20, 2021 meeting. The Board will likely consider amending some of the proposed changes in light of the CDC’s updated mask guidance.

Click here for a copy of the Notice to Employee form: 2021 COVID-19 Supplemental Paid Sick Leave (ca.gov)

Click here to see the online Q&A: 2021 COVID-19 Supplemental Paid Sick Leave FAQs (ca.gov)

By Jennifer Suberlak, Esq., San Diego SHRM VP of Legislation

New California COVID-19 Supplemental Paid Sick Leave Law Goes Into Effect on March 29, 2021

On March 19, 2021, Governor Newsom signed Senate Bill (“SB”) 95, kicking off a 10-day countdown until California’s new COVID-19 supplemental paid sick leave (“SPSL”) law goes into effect. SB 95 requires most California employers to provide up to 80 new hours of SPSL to employees who are unable to work due to COVID-19. The key provisions of this legislation are summarized below.

Covered Employers

Starting March 29, 2021, “covered employers” must provide these SPSL benefits. A business is a “covered employer” under SB 95 if it employs more than 25 employees.

Covered Employees

              A “covered employee” entitled to SPSL includes any employee who is unable to work or telework for a covered employer for one of the reasons listed in the statute (see below).

Reasons for Taking SPSL

              Covered employees may take SPSL if they are unable to work or telework due to any of the following reasons:

1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the California Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace;
2. The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. The covered employee is attending an appointment to receive a vaccine for protection against contracting COVID-19;
4. The covered employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework;
5. The covered employee is experiencing COVID-19 symptoms and seeking a medical diagnosis;
6. The covered employee is caring for a family member (i.e., a child, parent, spouse, registered domestic partner, grandchild, or grandparent), who is subject to an order or guidelines described in qualifying reason (1) or who has been advised to self-quarantine, as described in qualifying reason (2); or
7. The covered employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises. 

Retroactive Use of SPSL

              Pursuant to SB 95, all covered employees may use SPSL during the period from January 1, 2021 through September 30, 2021. Thus, covered employees may claim SPSL benefits retroactively to the start of this year. 

Amount of SPSL

Generally, full time employees are entitled to 80 hours of SPSL, while part-time employees are entitled to an amount of SPSL correlating with the number of hours regularly worked over two weeks. Here are the specific rules for how much SPSL a covered employee is entitled to:

Full Time Employees

A covered employee is entitled to 80 hours of SPSL if: (1) the employer considers the covered employee to work full time; or (2) the covered employee worked, or was scheduled to work, on average, at least at least 40 hours per week for the employer in the two weeks preceding the date the covered employee took SPSL.

Part Time Employees

A covered employee who does not meet the definition above (and who is not a “firefighter,” as defined below) is entitled to SPSL as follows:

1. If the covered employee has a normal weekly schedule, the total number of hours the covered employee is normally scheduled to work for the employer over two weeks;
2. If the covered employee works a variable number of hours, 14 times the average number of hours the covered employee worked each day for the employer in the six months preceding the date the covered employee took COVID-19 supplemental paid sick leave. If the covered employee has worked for the employer over a period of fewer than six months but more than 14 days, this calculation shall instead be made over the entire period the covered employee has worked for the employer;
3. If the covered employee works a variable number of hours and has worked for the employer over a period of 14 days or fewer, the total number of hours the covered employee has worked for that employer.

Firefighters

Special rules apply for firefighters. A covered employee who is a firefighter who was scheduled to work more than 80 hours for the employer in the two weeks preceding the date the covered employee took SPSL is entitled to an amount of SPSL equal to the total number of hours that the covered employee was scheduled to work for the employer in those two preceding weeks.

Note that SPSL is in addition to any other regular California paid sick leave the covered employee is already entitled to (i.e., paid sick leave under the Healthy Workplace Healthy Family Act of 2014). Moreover, covered employees are entitled to SPSL under SB 95 regardless of whether they used any SPSL last year. 

Payment for SPSL

              SB 95 explains how wages for SPSL are calculated for non-exempt covered employees. According to the bill, each hour of SPSL for non-exempt employees must be paid at the higher of:

1. The employee’s regular rate of pay for the workweek in which SPSL was taken, regardless of whether the employee worked overtime in that workweek;
2. The employee’s total wages (not including overtime premium pay) divided by the employee’s total hours worked in the full pay periods of the prior 90 days of employment;
3. The California minimum wage; or
4. The local minimum wage.

Per SB 95, SPSL for exempt covered employees is to be calculated in the same way as the employer calculates wages for other forms of paid leave time.

              Notably, wages for SPSL are capped at $511 per day and $5,110 in the aggregate for each covered employee.

              Because SB 95 is retroactive to January 1, 2021, employers must provide retroactive payment for qualifying leave taken since January 1, once the employee makes an oral or written request for such payment. This payment must be made on or before the payday for the next full pay period after the oral or written request of the employee. The payment must be listed on the employee’s wage statement and reflect the hours taken, rate of pay, and corresponding wages for SPSL.

Employee’s Choice of Leave

              The employer may not require a covered employee to use any other form of paid or unpaid leave or time off before using SPSL. However, the employer may require exhaustion of SPSL prior to providing exclusion pay under the Cal/OSHA COVID-19 Emergency Temporary Standards (“ETS”). That is, if an employee has been excluded from the workplace due to COVID-19 exposure, the employer may require the employee to first use their SPSL benefits before tapping into their exclusion pay benefits under the ETS.

Relation to Other Employer-Provided Leave

              If an employer provides supplemental benefits that are payable for the same reasons listed above, which are equal to or greater than those required under SB 95, then the employer may credit those benefits against the obligation to provide SPSL benefits. Employers may not credit supplemental benefits provided last year against their obligation to comply with SB 95.

Wage Statement Requirements

              The amount of SPSL an employee has available and has used must be listed as distinct line items on the employee’s wage statement (i.e., separately from any other form of paid sick leave or other paid time off).

Notice to Employees

              Covered employers must post a notice of the SPSL requirements in a conspicuous place in the workplace. The Labor Commissioner is to make available a model notice within seven days of the enactment of the statute, which employers may use to satisfy the notice requirement. If covered employees do not frequent the workplace, then the employer may satisfy the notice requirements by disseminating the notice by electronic means (i.e., by email).

By California Department of Public Health

State of California Changes the Vaccine Distribution Program

              The Dept. of Public Health announces three major changes. First, the state is taking the authority for distribution away from the counties. There will be a statewide program for distribution only. Second, the state is turning the distribution program over to Blue Shield. Third, the state started with a Phase and Tier system, that focused on certain high exposure populations to get vaccines first. Health care, first responders; and older persons were prioritized. Then it has focused on food and agriculture workers. We had hoped that essential workers such as construction would be in the next set of Tiers. Unfortunately, the state has decided that from here, they will prioritize by age, with descending tiers from the current 65 and older group. That will put many younger construction workers in a later group to receive vaccines.

Click here for the CDPH website on vaccines.

By State of California Department of Industrial Relations (CAL/OSHA)

CalOSHA Training: Preventing COVID-19 Infections at the Workplace

The employers course is designed for managers, supervisors, foremen, lead persons, and other people in charge of overseeing other workers or the health of safety of workers. The Workers course is designed for workers who do not fill any kind of supervisory or lead role. Please select the course that applies to you. 

To learn more or register for the course, click here. 

NOTE: Users who complete these online courses will earn certificates of completion. Completion of this training, alone, does not constitute compliance with an employer’s legal obligations to comply with safety and health requirements under California law. The training courses are designed to be used as part of an employer's safety program and are not complete trainings on their own. For training to be effective, employers must train their workers on information and procedures specific to their own workplaces. To take a course, users must register by providing their name and email address. Any personal information provided by users will be used by this training environment solely to track course progress and award the certificate upon completion. You are encouraged to review the Department of Industrial Relations privacy policy.

By Jennifer Suberlak, Esq., San Diego SHRM VP of Legislation

2020 Year in Review: The Impact of COVID-19 on the California Workplace

              Unsurprisingly, Merriam-Webster chose “pandemic” as its “Word of the Year” for 2020.  “Pandemic” fairly well summarizes the primary challenge faced by employers this year.  This article highlights the key COVID-19-related events and laws impacting employers and human resources professionals over the past twelve months. 

              Once the potential for a pandemic-level event became apparent to government officials in early March, a slew of federal, state, and local orders were issued to curb the spread of COVID-19.  Governor Newsom declared a state of emergency on March 4, while President Trump issued a similar declaration on March 13.  Less than a week later, Californians were introduced to the first statewide Stay at Home order, which instructed all residents to stay home except to go to an essential job or to shop for essential needs.  The Stay at Home order presented the first significant COVID-related challenge for California workplaces, as employers rushed to determine whether they operated essential businesses, whether they could transition their operations to remote status, or whether they would be compelled to shut down in whole or in part.  For the first time, many employers grappled with the concepts of layoffs, furloughs, and workplace reductions in force and how to proceed with such actions in compliance with the federal and California WARN Acts.  Hundreds of thousands of California employees were laid off in March and April as employers were forced to shutter or scale down operations. 

              Those businesses fortunate enough to offer remote work were then faced with new challenges posed by large-scale working from home (“WFH”).  To comply with the obligation to reimburse employees for necessary business expenses, employers competed to source and purchase appropriate technology and equipment, such as computers and printers, for their WFH employees.  Accurately capturing hours worked, ensuring meal and rest breaks, and maintaining employee productivity became a key focus of human resources professionals during this transitional period, as did promoting employee mental and emotional wellbeing. 

              Not long after the initial shutdown, Congress enacted a series of laws authorizing expanded employee benefits and new funding resources for businesses struggling to keep their doors open.  The Families First Coronavirus Response Act mandated paid sick leave and expanded family and medical leave for all businesses with fewer than 500 employees.  The CARES Act offered loans and grants to employers to cover, among other things, the cost of payroll.  Employers and legal practitioners alike wrestled with the nuances of the new legislation—which employers are covered, when are employees entitled to leave, how much leave must be provided and paid for—as additional guidance and regulations governing the laws was published after the laws had already gone into effect.  As autumn approached, the California Legislature enacted additional laws authorizing supplemental paid sick leave and mandating notification by employers of employees, workers’ compensation claims persons, and others of positive COVID-19 cases in the workplace. 

              Throughout it all, employers have faced a patchwork of local health orders with detailed rules about health and safety protocols, varying by county.  Though state and local authorities began reopening businesses over the summer, renewed surges of the virus triggered additional (though smaller scale) shutdowns and changes in how businesses could operate.  Naturally, employees concerned with their health and wellbeing were often hesitant to return to work, prompting employers to consider new ways to restructure in-person business locations and activities and bringing reasonable accommodation conversations to the fore. 

Most recently, Cal/OSHA has promulgated new rules regarding COVID-19 prevention in the workplace, some of which differ from other previously issued rules and new laws that go into effect in January. 

In all, the pandemic has certainly induced wide scale changes in the workplace over a relatively short period of time.  And the changes are sure to keep on coming, as cases continue to surge and employers and employees alike are now contemplating the impact of new vaccines on the horizon.  Although 2020 has presented a difficult year for all, one thing is clear—human resources professionals have been essential to keeping their organizations in compliance and in the know about these various laws and changes. 

Governor Newsom Signed A New Order On December 3, 2020

Thanks to Darcey M. Groden, Legislative & Communications Committee Member, Fisher & Phillips LLP

Governor Newsom signed a new order yesterday that will likely shut down a good portion of the state (including San Diego) within the next week. The shut-down criteria is tied to regional ICU capacity, and a good chunk of the state if likely to fall below needed available ICU capacity in the next couple of days.

For reference, Southern California’s current ICU capacity is 20.6%. As of yesterday, San Diego is doing marginally better than the region at 23%. 

To view the state’s website and scroll down to Regional Stay at Home Order, click here. 

To view the KPBS article noting that Governor Newsom says that all but the Bay Area could be within the trigger requirement within a couple of days, click here.

By Jennifer Suberlak, Esq., San Diego SHRM VP of Legislation

Governor Newsom Orders Partial Shutdown of Several Industries

Today, Governor Gavin Newsom reintroduced mandatory shutdown orders for certain California businesses.  Effective July 13, 2020, all counties must close indoor operations in the following sectors: dine-in restaurants; wineries and tasting rooms; movie theaters; family entertainment centers (such as bowling alleys, miniature golf, batting cages, and arcades); zoos and museums; and cardrooms.  Bars, breweries, and pubs must close all operations—both indoor and outdoor—across the state. 

Additionally, counties that have remained on the state’s County Monitoring List for three consecutive days are required to shut down the following industries unless they can be modified to operate outside or by pick-up: fitness centers; worship services; protests; offices for non-essential sectors; personal care services (such as nail salons, body waxing, and tattoo parlors); hair salons and barbershops; and malls.  As of July 13, 2020, San Diego county has remained on the state’s County Monitoring List for three consecutive days.  For a complete list of all affected counties, please visit the California COVID-19 website at https://covid19.ca.gov/roadmap-counties/. 

Employers are urged to visit the San Diego Public Health Department and the California Department of Public Health websites for more information about industries affected by these and ongoing restrictions.  

By Jennifer Suberlak, Esq., San Diego SHRM VP of Legislation

Small Business Stimulus Program Approved by San Diego County

Yesterday, San Diego County announced a new program designed to aid small businesses suffering financial losses due to the COVID-19 pandemic. Eligible businesses may apply for a grant from the County provided they can show that their losses and costs are a direct result of the pandemic. To be eligible for relief, a business must have:

• 100 or fewer employees;
• Its headquarters in San Diego County;
• A minimum one-year operating history as of February 14, 2020; and
• Documentation of financial hardship because of COVID-19. 

Qualifying businesses may submit applications through October 16, subject to available funding.  Employers hard hit by the pandemic are encouraged to apply promptly.  

By County News 

Local small businesses and restaurants suffering financial losses due to COVID-19 can now apply for a grant from the County of San Diego.

The Board of Supervisors approved a new Small Business Stimulus Program Tuesday during a Board meeting that also included a report on the behavioral health aspects of COVID-19.

Small Business Stimulus Program

For-profit and nonprofit businesses can apply for grant money if they can show losses and costs are a direct result of the pandemic.

To qualify businesses must have:

• 100 or fewer employees
• Headquarters in San Diego County
• A minimum 1-year operating history as of Feb. 14, 2020
• Documentation of financial hardship because of COVID-19

Board supervisors had approved using $17 million in CARES Act Coronavirus Relief Fund funds last May to help restaurants and small businesses. Tuesday, the supervisors approved the implementation of the program.

Businesses are urged to apply early. Applications are available now through Oct. 16 – subject to available funding.

For more information and the application, visit the stimulus website.

For the full article, click here. 

By Darcey M. Groden, San Diego SHRM Legislative & Communications Committee Member and Regina A. Petty, Fisher & Phillips Attorneys

California and San Diego Expanding Businesses That Can Reopen

On May 12, 2020, the businesses which can reopen under Early Stage 2 of the Resilience Roadmap have expanded to include:

• Office-based businesses (telework is still strongly encouraged)
• Car washes
• Pet grooming
• Landscaping and gardening businesses
• Outdoor museums and open gallery spaces
• Shopping malls (outdoor malls only), limited to curbside pickup

These reopening businesses should make sure to comply with industry guidance and checklists as established by the Resilience Roadmap, the Reopen San Diego Business Safety Framework, and the updated Public Health Order issued by the San Diego County Public Health Office.  The requirements for reopening businesses—including the Safe Reopening Plan all reopened businesses must complete—are summarized in the May 8, 2020 Resource Blog post.

By Darcey M. Groden, San Diego SHRM Legislative & Communications Committee Member and Regina A. Petty, Fisher & Phillips Attorneys

California and San Diego County Take the First Steps Toward Reopening 

Starting May 8, 2020, California is entering Early Stage 2 of the Resilience Roadmap by gradually reopening specified lower risk workplaces.  In tandem with California’s Resilience Roadmap, the County of San Diego’s Board of Supervisors adopted the Reopen San Diego Business Safety Framework and the local Public Health Office issued an updated Public Health Order which go into effect the same day.  While this update will not provide a complete list of all updates to the Public Health Order since Jennifer Suberlak posted her initial summary on April 3, 2020, this will provide guidance for businesses which are re-opening.

Who Can Reopen?

In Early Stage 2, California is permitting lower-risk workplaces to open with the modification that they provide curb-side pickup and delivery only.  The businesses that may reopen include bookstores, jewelry stores, toy stores, clothing stores, shoe stores, home and furnishing stores, sporting goods stores, antique stores, music stores and florists.  Supply chains supporting these businesses in the manufacturing and logistics sectors may also open.

It is anticipated that, later in Stage 2, the following stores will reopen: destination retail (including shopping malls and swap meets), select personal services (limited to car washes, pet grooming, tanning facilities, and landscape gardening), office-based businesses (with telework remaining strongly encouraged), dine-in restaurants (with amenities like bars or gaming areas remaining closed), schools and childcare facilities, and outdoor museums and open gallery spaces.

Higher risk businesses are not in Stage 2 reopening and will remain closed.  These include personal services (such as nail salons, tattoo parlors, gyms, and fitness studios), hospitality services (such as bars and lounges), entertainment venues (such as movie theaters, gaming facilities, and professional sports), indoor museums, kids museums and gallery spaces, zoos, libraries, communities centers (including public pools, playgrounds, and picnic areas), religious services and cultural ceremonies, nightclubs, concert venues, festivals, theme parks, and hotels/lodging for leisure and tourism.

I am a Stage 2 Low Risk Retail Business and Want to Reopen.  What Do I Need to Do to Satisfy the State and County Guidelines?

Before reopening, the State requires that all facilities do the following:

• Perform a detailed risk assessment and implement a site-specific protection plan.

• Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and to stay at home if they have them.

• Implement individual control measures and screenings.

• Implement disinfecting protocols.

• Implement physical distancing requirements.

San Diego County’s updated Public Health Order and the Reopen San Diego Business Safety Framework are a direct response to these five criteria.  The Reopen San Diego Business Safety Framework requires the implementation of guidelines for employee safety, customer safety, sanitation, physical distancing, and general business practices.  Permissible retail and related businesses that chose to reopen must complete the Safe Reopening Plan and post it at their business entrances.

When completing the Safe Reopening Plan, businesses must review the Resilience Roadmap and Framework to ensure that they are complying with all mandates and obligations.  Employers must refer to their industry’s guidance and checklists as established by the Resilience Roadmap.  Furthermore, while not specifically addressed in the Safe Reopening Plan form, employers should consider incorporating the Framework criteria that non-essential travel be minimized and that adherence to CDC guidelines regarding quarantine following travel be implemented.

What is in the Safe Reopening Plan?  What Do I Need to Do to Qualify to Reopen?

Mandatory Signage and Education

• Distribute copies of the Safe Reopening Plan to all employees.

• Post a copy of the Safe Reopening Plan at each public entrance.

• Post signs at each public entrance of the facility instructing employees and customers to avoid entering the facility if they have a cough or fever, wear facial coverings, maintain a minimum six-foot distance from one another, and not shake hands or engage in any unnecessary physical contact.

• Identify and provide contact information for a Health and Safety Coordinator whom any authorities, employees and the public may contact for questions or comments about the Safe Reopening Plan.

Measures to Protect Employee Health

• Maximize telework opportunities.

• Instruct employees not to come into work if sick.

• Take employee temperatures upon reporting to work.  If 100 degrees or more, employees must not be allowed in the workplace.  If a thermometer is not available, employees must be screened for symptoms including a cough; shortness of breath or trouble breathing; or two of the following: fever, chills, repeated shaking with chills, muscle pain, headache, sore throat, new loss of taste or smell.

• Require employees to wear facial coverings if within six feet of others.

• Separate all desks or individual work stations by at least six feet.

• Disinfect break rooms, bathrooms, and other common areas on a regular schedule established by the employer as part of the Safe Reopening Plan.

• Provide employees with Personal Protective Equipment at a level appropriate to employee job duties, which must be established by the employer as part of the Safe Reopening Plan.

• Provide soap and water to all employees in locations identified in the Safe Reopening Plan.

• Distribute copies of the Safe Reopening Plan to all employees.

• Identify a health and safety coordinator to ensure compliance with the Public Health Order and the Safe Reopening Plan.

• Minimize non-essential travel and adhere to CDC guidelines regarding quarantine following travel.

• Consider and identify additional measures specific to the business, to be included in the Safe Reopening Plan.

Measures to Protect Customer Safety in Retail Establishments

• Limit the number of customers in a store at any one time once Stage 2 reopened businesses are permitted to provide more than curbside or outdoor service.

• Require patrons/visitors to wear facial coverings.

• Provide curbside or outdoor service where feasible even once Stage 2 reopened businesses are permitted to allow customers into stores.

• Consider additional measures to be identified in the Safe Reopening Plan. 

Measures to Ensure Physical Distancing of at Least Six Feet

• Post signs outside the store reminding people to stay at least six feet apart even when in line.

• Encouraging pedestrian traffic to follow one-way paths.

• Place tape or markings in customer line areas inside and outside stores at six-foot intervals with signs directing customers to use the markings to maintain social distance.

• Instruct employees to stay six feet away from customers and other employees except when necessary such as to accept payment or deliver goods or service.

• Utilize an appointment system.

• Consider other measures to be identified in the Safe Reopening Plan.

What If My Business Does Not Implement or Follow Its Safe Reopening Plan?

The Safe Reopening Plan requirements are incorporated into the County’s Public Health Order.  Reopened businesses are responsible for ensuring that all required measures in the Safe Reopening Plan are implemented and, if those measures are not effective in maintaining proper social distancing and sanitation, they are responsible for modifying their Safe Reopening Plan to achieve those goals. 

The County can shut down businesses that fail to implement an effective Safe Reopening Plan. The County has created an online form which allows the public to report violations of a failure to wear face coverings, and which will route the complaints to the appropriate police or sheriff’s department (if a witness does not call them directly—the numbers are also posted online).  However, beyond that, violation of any portion of the Public Health Order is a misdemeanor, and employers can face fines and imprisonment.

By Jennifer Suberlak, Esq., San Diego SHRM VP of Legislation

San Diego County Requires Businesses to Post Social Distancing Protocols and Public-Facing Employees to Wear Cloth Face Coverings

Effective at midnight on Friday, April 3, 2020, the San Diego County Public Health Officer amended her previous order dated March 27, 2020 (the “March 27 Order”) to add further provisions for businesses still in operation and employees interacting with the public.  Pursuant to the amendment (“the Amended Order”), all businesses that remain in operation in accordance with the March 27 Order and that allow members of the public to enter their facilities must prepare and post – no later than 12:00 a.m. on April 7, 2020 – a “Social Distancing and Sanitation Protocol” for each facility in the county that is open to the public.  This protocol must be posted at or near the entrance to the facility and must be easily view-able by the public and employees.  Employees who work at the facility must also be provided with a copy of the protocol.  The protocol must ensure that all required measures are implemented at each facility and that such measures will ensure proper social distancing and sanitation at each facility.  The county has published a template that businesses may use as a model Social Distancing and Sanitation Protocol. This template is available by clicking here.

Moreover, effective at midnight on Saturday, April 4, 2020, all employees who may have contact with the public in any grocery store, pharmacy/drug store, convenience store, gas station, restaurant or any other business establishment that serves food must wear a cloth face covering.  Attached to the Amended Order is a copy of guidance issued by the California Department of Public Health regarding the use of face coverings. To view a copy of the Amended Order, please click here.

By Jennifer Suberlak, Esq., San Diego SHRM VP of Legislation

Department of Labor Issues Draft Regulations for Implementing Paid Sick Leave and Expanded Family and Medical Leave

On April 1, 2020, the U.S. Department of Labor (“DOL”) published a draft of its regulations for implementing paid sick leave under the Emergency Paid Sick Leave Act (“EPSLA”) and expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act (“EFMLEA”).  These regulations are scheduled to become published in their final form on April 6, 2020.  A summary of the key takeaways from the regulations is provided below:

Definition of “Son” and “Daughter”

The regulations confirm that the same definition of the terms “son” and “daughter” apply under both the EPSLA and the EFMLEA to ensure consistency in the application of the two statutes.  “Son” or “daughter” means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age; or 18 years of age or older who is incapable of self-care because of a mental or physical disability.

Definition of “Telework” 

“Telework” refers to work the employer permits or allows an employee to perform while the employee is at home or at a location other than the employee’s normal workplace.  An employee is able to telework if: (1) the employer has work for the employee; (2) the employer permits the employee to work from the employee’s location; and (3) there are no extenuating circumstances (such as serious COVID-19 symptoms) that prevent the employee from performing that work.  Telework may be performed during normal hours or at other times agreed upon by the employer and employee.  Employers are encouraged to permit highly flexible work schedules that allow employees to work remotely, potentially at unconventional times.

Paid Sick Leave Entitlement

Employees may take paid sick leave under the EPSLA for the following qualifying reasons:

1.     The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;

a.      For the purposes of the EPSLA, a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any federal, state, or local government authority that cause the employee to be unable to work even though the employer has work that the employee could perform but for the order.  This also includes when a federal, state, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of employees to be unable to work even though their employers have work for them.

b.     An employee may use paid sick leave for qualifying reason (1) only if being subject to one of these orders prevents the employee from working or teleworking.  The question is whether the employee would be able to work or telework but for being required to comply with an order. 

c.      An employee subject to a quarantine or isolation order may not take paid sick leave where the employer does not have work for the employee as a result of the order or other circumstances.  For example, if the business closes due to a downturn in business or because it has  been ordered to close, the employee still would not be able to work even if not required to stay home, and therefore the employee may not take paid sick leave for qualifying reason (1). 

2.     The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

a.      The need for leave must be based on the health care provider’s belief that the employee has COVID-19, may have COVID-19, or the employee is particularly vulnerable to COVID-19. 

b.     Following the health care provider’s advice to self-quarantine must prevent the employee from being able to work.  If the employee is able to telework, leave may not be taken under qualifying reason (2). 

3.     The employee is experiencing symptoms of COVID-19 and seeking medical diagnosis from a health care provider;

a.      Any paid sick leave taken for qualifying reason (3) is limited to the time the employee is unable to work because the employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19. 

b.     An employee cannot take leave for qualifying reason (3) if the employee is in self-quarantine without seeking a diagnosis.

c.      An employee cannot take leave for qualifying reason (3) if the employee is able to telework while awaiting COVID-19 test results.  However, if the employee is unable to telework while awaiting test results, the employee may take leave for qualifying reason (3). 

d.     If an employee is experiencing symptoms of COVID-19 but is not seeking a medical diagnosis, the employee may not take leave for qualifying reason (3).  However, if a health care provider advises the employee to self-quarantine and doing so renders the employee unable to work, the employee may take leave for qualifying reason (2). 

e.      If an employee is experiencing symptoms of COVID-19, is advised by a health care provider that the employee does not meet the criteria for testing for COVID-19 and is advised to self-quarantine, and self-quarantine renders the employee unable to work, the employee may take leave for qualifying reason (2), but not for qualifying reason (3). 

4.     The employee is caring for an individual who is subject to an order as described in qualifying reason (1) or was advised by a health care provider for qualifying reason (2);

a.      “Individual” means an immediate family member, roommate, or similar person with whom the employee has a relationship that creates an expectation that the employee would care for that person.  “Individual” does not include persons with whom the employee has no personal relationship.

b.     An employee caring for an individual may not take paid sick leave for qualifying reason (4) where the employer does not have work for the employee.

5.     The employee is caring for his or her son or daughter whose school or place of care has been closed for a period of time, whether by order of a state or local official or authority or at the decision of the individual school or place of care, or the child care provider of such son or daughter is unavailable, for reasons related to COVID-19; or

a.      The employee may not take paid sick leave under qualifying reason (5) if another suitable person is available to care for the child during the period of leave.

b.     The employee may only take paid sick leave under qualifying reason (5) if the need to care for the child prevents the employee from being able to work or telework.

c.      The employee may not take paid sick leave under qualifying reason (5) if the employer does not have work for the employee.

6.     The employee has a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor. 

Expanded FMLA Leave Entitlement

EFMLEA leave may only be taken when the employee is unable to work due to a need to care for the employee’s child whose school is closed or child care provider is unavailable (i.e., the same reason as qualifying reason (5) for paid sick leave).  The employee may not take EFMLEA leave if another suitable person is available to care for the child during the period of leave or if the employer does not have work available for the employee. 

Impact of Intermittent Leave on Exempt Employee Status 

Taking paid sick leave or EFMLEA leave does not impact an employee’s status or eligibility for an exemption under the Fair Labor Standards Act.  Thus, taking leave on an intermittent basis does not undermine the employee’s salary basis for the exemption.   

Amount of Paid Sick Leave 

Full time employees are entitled to 80 hours of paid sick leave.  An employee is full time if he or she is normally scheduled to work at least 40 hours each workweek.  If an employee has a variable work schedule, he or she is also a full time employee if he or she was scheduled to work at least 40 hours per workweek over the previous six months (or, if the employee has been employed for less than six months, over the entire period of employment).  

If a part time employee works a regular schedule, the employee is entitled to paid sick leave in the number of hours normally worked in two weeks.  If a part time employee has a variable work schedule, he or she is entitled to paid sick leave as follows:

• If the employee has been employed at least six months, fourteen times the average number of hours that the employee was scheduled to work each calendar day over the previous six months.

• If the employee has been employed less than six months, fourteen times the number of hours the employee and the employer agreed to at the time of hiring that the employee would work, on average, each calendar day.  If there was no such agreement, then fourteen times the average number of hours per calendar day that the employee was scheduled to work over the entire period of employment. 

Compensation for Paid Sick Leave 

For each hour of paid sick leave taken for qualifying reasons (1), (2), and (3), the employee must be paid the greater of the employee’s regular rate, the federal minimum wage, or the state or local minimum wage.  For each hour of paid sick leave taken for qualifying reasons (4), (5), and (6), the employee must be paid two-thirds of the foregoing amount.  

Wages for sick leave taken for qualifying reasons (1), (2), and (3) are capped at $511 per day and $5,110 in the aggregate.  Wages for sick leave taken for qualifying reasons (4), (5), and (6) are capped at $200 per day and $2,000 in the aggregate. 

Compensation for Expanded FMLA Leave

The first two weeks of EFMLEA leave are unpaid (though the employee may be eligible for paid sick leave during such time for qualifying reason (5)).  After the initial two weeks of EFMLEA leave, the employee is entitled to two-thirds of the employee’s regular rate times the employee’s scheduled number of hours for each day of leave taken.  Such wages are capped at $200 per day and $10,000 in the aggregate per employee. 

If the employee has a normal work schedule, the “scheduled number of hours” means the number of hours the employee is normally scheduled to work on that workday. 

If the employee has a variable work schedule and has been employed for at least six months, the “scheduled number of hours” means the average number of hours the employee was scheduled to work each workday over the previous six months.  

If the employee has a variable work schedule and has been employed for less than six months, the “scheduled number of hours” means the average number of hours the employee and the employer agreed at the time of hiring the employee would work each workday.  If there is no such agreement, then the “scheduled number of hours” is equal to the average number of hours per workday that the employee was scheduled to work over the entire period of employment. 

If an employee elects or is required to use leave available under the employer’s existing policies (such as vacation or PTO) concurrently with EFMLEA leave, then the employer must pay the employee a full day’s pay for that day. 

Calculating the Regular Rate 

As noted above, wages for paid sick leave and EFMLEA leave are paid based on the greater of the employee’s regular rate of pay, federal minimum wage, or state or local minimum wage.  In most cases, the employee’s regular rate of pay is likely to be the greatest of these three options.  The regulations establish particular guidelines for calculating the regular rate of pay—specifically, employers are to calculate the “average regular rate.”  First, employers are to follow the existing regulations set forth in 29 C.F.R. Parts 531 and 778 to compute the regular rate for each full workweek in which the employee has been employed over the previous six months (or, if the employee has been employed for less than six months, over the entire period of employment).  (Generally, the regular rate is calculated by dividing all non-overtime compensation by all hours worked in the workweek—but please see the regulations in 29 C.F.R. Parts 531 and 778 for specific details about what to exclude from the regular rate calculation.)  Next, the employer must compute the average of those weekly regular rates, weighted by the number of hours for each workweek. 

The DOL provides the following example of how to calculate the average regular rate over a two-week period.  An employee receives $400 in non-excludable compensation in one week for working 40 hours, and $200 of non-excludable compensation in the next week for working ten hours.  The regular rate in the first week is $10 per hour ($400 ÷ 40 hours), and the regular rate for the second week is $20 per hour ($200 ÷ 10 hours).  The weighted average, however, is not computed by averaging $10 per hour and $20 per hour (which would be $15 per hour).  Rather, it is computed by adding up all compensation over the relevant period (here, two workweeks), which is $600, and then dividing that sum by all hours worked over the same period, which is 50 hours.  Thus, the weighted average regular rate over this two-week period is $12 per hour ($600 ÷ 50 hours).  NOTE: For the sake of simplicity, this example only examined the average regular rate over a two-week period.  As specified in the preceding paragraph, an employer must compute the average regular rate over a six-month period (or the entire duration of employment, if less than six months). 

Eligibility Under the EPSLA

All employees are eligible for paid sick leave under the EPSLA except: (1) health care providers and emergency responders; and (2) employers with fewer than 50 employees when the imposition of the requirement would jeopardize the viability of a business as a going concern.  Employees are eligible for paid sick leave under the EPSLA regardless of the duration of their employment.

Eligibility Under the EFMLEA

All employees who have been employed by an employer for at least 30 days are eligible for expanded family and medical leave under the EFMLEA except: (1) health care providers and emergency responders; and (2) employers with fewer than 50 employees when the imposition of the requirement would jeopardize the viability of a business as a going concern.

An employee is “employed by an employer for at least 30 days” if: (1) the employer had the employee on its payroll for 30 calendar days before the day the employee’s leave would begin; or (2) the employee was laid off on or after March 1, 2020 and rehired on or before December 31, 2020, and the employee had been on the employer’s payroll for 30 or more of the 60 days before the employee was laid off.  An example of the latter would be an employee who was originally hired by an employer on January 15, 2020, but laid off on March 14, 2020; this individual would be eligible for leave under the EFMLEA and the EPSLA, if the same employer rehired the employee, for instance, on October 1, 2020.

If an employee is hired by the employer after being employed by a temporary placement agency, then the employer will count the days the employee worked as a temporary employee toward the 30-day eligibility period.  

An employee who has been employed by a covered employer for at least 30 calendar days is eligible for EFMLEA leave regardless of whether the employee would otherwise be eligible for leave under the FMLA.  For example, an employee need not have been employed for 1,250 hours of service and twelve months of employment as otherwise required under the FMLA to be eligible for leave under the EFMLEA.

Exclusion of Health Care Providers and Emergency Responders

As noted above, “health care providers” and “emergency responders” may be excluded from eligibility for leave under the EPSLA and the EFMLEA. 

Who is a health care provider under the EPSLA and EFMLEA?

A “health care provider” is:

• Anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution.  This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

• Any individual employed by an entity that contracts with any of the foregoing institutions to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility.

• Anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.

Additionally, any individual that the highest official of a state, territory, or the District of Columbia determines is a health care provider necessary for that locality’s response to COVID-19 is a “health care provider” who may be excluded from eligibility.

Who is an emergency responder under the EPSLA and EFMLEA?

An “emergency responder” is anyone necessary for the provision of transport, care, healthcare, comfort, and nutrition of such patients, or others needed for the response to COVID-19.  This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.  This also includes any individual whom the highest official of a state, territory, or the District of Columbia determines is an emergency responder necessary for that locality’s response to COVID-19.

Exemption for Health Care Providers and Emergency Responders

Notably, an employer’s exercise of the option to exempt health care providers and/or emergency responders from eligibility under the EPSLA and/or the EFMLEA does not impact an employee’s earned or accrued sick, personal, vacation, or other employer-provided leave under the employer’s established policies.  Nor can an employer prevent an employee who is a health care provider or emergency responder from taking earned or accrued leave in accordance with established employer policies.

Because an employer is not required to exercise this option, if an employer does not elect to exclude an otherwise-eligible health care provider or emergency responder from taking paid leave under the EPSLA or the EFMLEA, such leave is subject to all other requirements of those laws, and should be treated in the same manner for purposes of the tax credit created by the FFCRA.

Covered Employers

Generally, all private employers that employ fewer than 500 employees at the time an employee would take leave must comply with the EPSLA and the EFMLEA except: (1) health care providers and emergency responders; and (2) employers with fewer than 50 employees when the imposition of the requirement would jeopardize the viability of a business as a going concern.

How does an employer determine the number of employees 
for purposes of EPSLA and EFMLEA?

Employers must count all full time and part time employees employed within the United States at the time the employee would take leave.  “Within the United States” means employees within any state of the United States, the District of Columbia, or any territory or possession of the United States.  For purposes of the employee count, every part time employee is counted as if he or she were a full time employee.  The total employee count includes:

• All employees currently employed, regardless of how long those employees have worked for the employer;
  
• Any employees on leave of any kind;

• Employees of temporary placement agencies who are jointly employed under the Fair Labor Standards Act (“FLSA”), by the employer and another employer (regardless of which employer’s payroll the employee appears on); and

• Day laborers supplied by a temporary placement agency (regardless of whether the employer is the temporary placement agency or the client firm).

Individuals who do not count as employees for this determination include: independent contractors under the FLSA; workers who have been laid off and have not subsequently been reemployed; and workers who have been furloughed and have not subsequently been reemployed.

The regulations also provide guidance on how to count employees of joint employers:

• All common employees of joint employers or all employees of integrated employers must be counted together.

• Generally, a corporation (including its separate establishments or divisions) is considered a single employer and all of its employees must be counted together.

• Where one corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees.

• In general, two or more entities are separate employers unless they meet the integrated employer test under the FMLA.  If two entities are an integrated employer under this test, then employees of all entities making up the integrated employer must be counted.

Small Business Exemption

An employer, including a religious or nonprofit organization, with fewer than 50 employees is exempt from providing leave under the EPSLA and the EFMLEA when the imposition of such requirements would jeopardize the viability of the business as a going concern.  The exemption applies only to the requirement to provide leave because the school or child care provider of the employee’s child is closed or unavailable (qualifying reason (5)).  A small business under this section is entitled to this exemption if an authorized officer of the business has determined that:

• Providing leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;

• The absence of the employee would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or

• There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee(s) requesting leave, and these labor or services are needed for the small business to operate at a minimal capacity.

To elect this small business exemption, the employer must document that a determination has been made pursuant to the criteria set forth above.  However, the employer should not send such documentation to the DOL, but rather retain the records in its files.

Leave to Care for Child Due to School/Childcare Closure –
Intersection Between EPSLA and EFMLEA

Both the EPSLA and EFMLEA authorize paid leave for employees unable to work as a result of a need to care for a son or daughter whose school or childcare is no longer available due to COVID-19. 

When both leave allocations apply, an employee utilizes two weeks of paid leave under the EPSLA, which runs concurrently with the first two weeks of unpaid EFMLEA leave.  Once paid sick leave is exhausted, the remaining applicable leave time is paid under EFMLEA.  When an employee has already taken traditional FMLA leave during the applicable 12-month period, however, the maximum amount of leave available is reduced by the amount of FMLA leave already taken. 

Employers should take this opportunity to ensure that employees are aware of the applicable 12-month FMLA accrual period, such that appropriate leave is made available.  As EFMLEA benefits must be used by December 31, 2020, employees do not become entitled to additional EFMLEA leave even if a new FMLA “year” begins during the remainder of this calendar year.  Put differently, the maximum allowable amount of COVID-19-related leave under EFMLEA is 12 weeks.

Similarly, if an employee utilizes paid sick leave for a reason other than attending to a school or childcare closing, and then later becomes entitled to EFMLEA leave for a covered childcare reason, the employee is entitled to up to the full twelve weeks of EFMLEA leave to care for his or her child, but does not receive compensation for the first two weeks of that leave.  The employee may, however, substitute PTO or other accrued leave to the extent applicable under the employer’s relevant policies.

While the FMLA generally contains stringent eligibility requirements (such as having worked for the employer for at least one year and having worked at least 1,250 hours in the preceding 12 months), employees taking EFMLEA leave need only have been employed for 30 days.  This lowered threshold does not, however, apply to other types of FMLA leave (baby bonding, etc.), for which eligibility requirements remain unchanged.

Employer Notice Requirements

The Department of Labor has prepared a model notice that is available for download from its website (https://www.dol.gov/whd) and must be posted in a conspicuous place at an employer’s worksite.  The same notice should also be distributed to remote employees via email or regular mail.  Spanish language versions of the notice are also available.

Employee Notice Requirements

An employee unable to work as a result of school or childcare closure is required to provide reasonable notice to an employer as soon as practicable after the first workday (or portion thereof) for which leave is required.  Employers are permitted to require that employees comply with usual notice procedures, absent unusual circumstances.

Documentation provided by an employee confirming a need to utilize EPSLA or EFMLEA leave should include: (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.  Depending on the applicable reason(s) for leave, the employee must also indicate whichever of the following apply: the government entity issuing the quarantine or isolation order to which the employee or individual under the employee’s care is subject; the name of the healthcare provider advising the employee or individual under the employee’s care to self-quarantine; and/or the name of the child and school or childcare facility that has become unavailable, along with a statement confirming that no other suitable person is available to care for the child during the period of requested leave.

Health Care Coverage

An employee taking EPSLA or EFMLEA leave remains entitled to continued health care coverage during his or her absence on the same terms as would have applied had the employee not taken leave.  Employers should familiarize themselves with any requirements to notify insurance providers and are encouraged to contact their insurance brokers to ensure that appropriate obligations are satisfied. 

If changes are made to healthcare benefits (such as changes to plans or changes to contributions/premiums) while an employee is on leave, the employee should be made aware of changes, and is required to participate/take action as necessary (including paying higher premiums, if applicable) under revisions to the plan.

Return to Work

An employee that utilizes EPSLA or EFMLEA leave is generally entitled to be restored to the same or an equivalent position upon return to work.  This does not, however, protect an employee from other employment actions (such as layoffs) that would otherwise have impacted the employee regardless of whether leave was taken. 

Recordkeeping

Records of requests and provision of leave under the EPSLA and EFMLEA must be kept for a minimum of four years.  As a practical manner, however, records should be kept in employee personnel files (or separate employee medical files, if necessary) and retained in compliance with existing company policies, assuming that the four-year requirement is also satisfied.

Prohibited Acts and Enforcement

Employers are prohibited from discharging, disciplining, discriminating against, or otherwise taking any adverse employment action against employees exercising their rights under the EPSLA and EFMLEA.  Penalties for an employee’s failure to provide required leave will be significant.

Additional Considerations Applicable to Interaction of Provisions

The EPSLA and EFMLEA are intended to be expansions of existing law.  As a result, the EPSLA must be provided in addition to any other sources of leave which an employee has already accrued or used prior to April 1, 2020.  The same holds true with the EFMLEA, except as applied above, in cases in which FMLA has already been utilized during an applicable 12-month period.  An employee does not, however, have any right to utilize EPSLA and/or EFMLEA retroactively to apply to any leave taken prior to April 1, 2020.

An employee may choose to utilize EPSLA leave prior to using any other type of paid leave to which the employee may have been entitled, and an employer may not require, coerce, or unduly influence an employee to use an alternate source of paid leave before utilizing EPSLA or EFMLEA leave.  An employee may, however, elect to utilize leave (such as PTO) available to that employee concurrently while utilizing EFMLEA leave to care for a child as a result of school or childcare closure.  In such a case, the employer is required to pay the employee the full amount contemplated by the employer’s leave policy, but the employer’s tax credit will remain capped at the threshold set by the EFMLEA.

An employer has no obligation to provide employees with EPSLA and/or EFMLEA benefits that are not utilized prior to the conclusion of an employee’s employment.

If an individual changes employers between April 1, 2020 and December 31, 2020, that individual is only entitled to a maximum of 80 hours of paid sick leave, total.  The employee is therefore not entitled to an additional 80 hours of paid sick leave for each subsequent employer but is instead entitled only to a total of 80 hours across all employers during the applicable period.

By Jennifer Suberlak, Esq., San Diego SHRM VP of Legislation

The Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) was signed into law by President Trump on March 27, 2020.  There are numerous sections of the CARES Act that impact California employers.  These sections include: 

Expanded Unemployment – Pandemic Unemployment Assistance Program

The law will expand unemployment in several ways, including by creating a temporary Pandemic Unemployment Assistance program that will pay out affected workers who are not traditionally eligible for benefits through December 31, 2020.  This includes independent contractors, the self-employed, those with limited work history, and others.  The CARES Act will pay collecting workers an additional $600 per week on top of their regular state benefits for up to four months and provides as many as 13 more weeks of payments to workers whose state benefits end before they can return to work.

Paycheck Protection Program

The Paycheck Protection Program is designed to incentivize struggling small- and medium-sized businesses to continue paying workers, providing benefits by making small business loans easier to obtain, and by allowing loans to be partially forgiven when the proceeds are used to cover salaries, insurance, rent, and other costs.  Employers with fewer than 500 workers would be forgiven the amounts they put into payroll costs and mortgage payments and interest for eight weeks after loan origination, with some limitations.  This forgiveness is also available to businesses that rehire workers who have already been laid off.

Business Loans

The law also provides $500 billion in non-forgivable loans to businesses under certain conditions, including that they maintain their current staffing through September 2020 “to the extent practicable” and do not engage in stock buybacks “unless contractually obligated.”

Employee Retention Tax Credit

          The CARES Act also provides an employee retention tax credit.  This tax credit is not available to employers that receive loans pursuant to the Paycheck Protection Program.  The employee retention tax credit provides an eligible employer with a refundable payroll tax credit for 50% of the wages paid by the employer during the COVID-19 crisis and applies to wages paid between March 13, 2020 and the end of the year. 

Payroll Taxes

          The CARES Act also provides that an employer may defer payment of its portion of Social Security taxes it would otherwise be obligated to pay.  Any deferred payroll taxes would be required to be paid over the next two years – with half of the owed amount being required to be paid by December 31, 2021, and the remaining half by December 31, 2022.

Amendments to the Families First Coronavirus Response Act

The CARES Act amends the emergency medical and family leave provisions of the Families First Coronavirus Response Act to extend benefits to certain employees who have been laid off but are ultimately rehired.  The law provides that employees eligible for up to 12 weeks of emergency family and medical leave include those who were laid off March 1, 2020 or later, had worked for the employer for at least 30 of the last 60 calendar days prior to the employee’s layoff, and were subsequently rehired by the same employer. 

Additionally, the CARES Act clarifies that employers: (1) need not pay more than $200 per day and $10,000 in the aggregate for each employee taking emergency family and medical leave; (2) need not pay more than $511 per day and $5,110 in the aggregate for each employee for emergency paid sick leave taken because the employee is subject to a federal, state, or local order to quarantine or isolate due to COVID-19 (qualifying reason one), the employee has been advised by a health care provider to self-quarantine due to COVID-19 (qualifying reason two), or the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis (qualifying reason three); and (3) need not pay more than $200 per day and $2,000 in the aggregate for each employee taking emergency paid sick leave because the employee is caring for someone else who is subject to a federal, state, or local order to quarantine or isolate or has been advised by their health care provider to self-quarantine (qualifying reason four), the employee is caring for his/her child whose school is closed or child care provider is unavailable due to COVID-19 (qualifying reason five), and 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.

By Darcey Groden, San Diego SHRM Legislative & Communications Committee Member

DOL Provides Further Guidance on FFCRA

Note: This blog entry has been updated as of the evening of March 27, 2020 to reflect changes made today to Question 15 from the DOL FAQ on the FFCRA.  While portions of the FAQ have been quoted below as of the posting of this blog entry, readers should click through to the DOL website to ensure they have the most current information and that no further changes have been made.  This is a rapidly evolving situation, and further edits to the FAQ could be made.

Yesterday, the Department of Labor (“DOL”) provided additional questions and answers regarding the Families First Coronavirus Response Act (“FFCRA”) on its FAQ located here.  If you attended the San Diego SHRM webinar on the FFCRA yesterday, this FAQ answers some of the questions that we did not have definitive answers for.  As we mentioned, the effective date of the FFCRA is April 1—not the previously anticipated April 2.  Additionally, the DOL has already updated the notices regarding FFCRA paid leave rights and provided copies in Spanish—if you downloaded copies yesterday, please visit the webpage and get the updated notices.  Also, please check out the separate FAQ the DOL put out for the notices which contains an additional 13 questions and answers.

The DOL’s FAQ addresses questions regarding how to calculate the regular rate of pay (there is a lookback period of six months), recordkeeping and documentation (you will need this to claim your tax credits), whether PSL/EFMLA may be intermittent (it depends—see the FAQ as it addresses various scenarios), whether PSL/EFMLA needs to be provided to furloughed employees (it does not), and more.  We encourage you to read the entire FAQ—there are now 37 question and answers—but we are copying and pasting seven of the most common questions that we have gotten from employees and which are answered in the FAQ.  We would also recommend you bookmark that page and visit it frequently so that you can stay on top of the updates.

Question 8: What is my regular rate of pay for purposes of the FFCRA?

For purposes of the FFCRA, the regular rate of pay used to calculate your paid leave is the average of your regular rate over a period of up to six months prior to the date on which you take leave.  [Footnote] If you have not worked for your current employer for six months, the regular rate used to calculate your paid leave is the average of your regular rate of pay for each week you have worked for your current employer.

If you are paid with commissions, tips, or piece rates, these amounts will be incorporated into the above calculation to the same extent they are included in the calculation of the regular rate under the FLSA.

You can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.

[Footnote: If you are a Federal employee, the State or local minimum wage would be used to calculate the wages owed to you only if the Federal agency that employs you has broad authority to set your compensation and has decided to use the State or local minimum wage.]

Question 15: What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?

Private sector employers that provide paid sick leave and expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits.  If you intend to claim a tax credit under the FFCRA for your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

If one of your employees takes expanded family and medical leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, you may also require your employee to provide you with any additional documentation in support of such leave, to the extent permitted under the certification rules for conventional FMLA leave requests. For example, this could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider. 

Question 20: May I take my paid sick leave or expanded family and medical leave intermittently while teleworking?

Yes, if your employer allows it and if you are unable to telework your normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act. In that situation, you and your employer may agree that you may take paid sick leave intermittently while teleworking. Similarly, if you are prevented from teleworking your normal schedule of hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you and your employer may agree that you can take expanded family medical leave intermittently while teleworking.

You may take intermittent leave in any increment, provided that you and your employer agree. For example, if you agree on a 90-minute increment, you could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.

The Department encourages employers and employees to collaborate to achieve flexibility and meet mutual needs, and the Department is supportive of such voluntary arrangements that combine telework and intermittent leave.

Question 21: May I take my paid sick leave intermittently while working at my usual worksite (as opposed to teleworking)?

It depends on why you are taking paid sick leave and whether your employer agrees. Unless you are teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because:

• You are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
• You have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
• You are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
• You are caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
• You are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Unless you are teleworking, once you begin taking paid sick leave for one or more of these qualifying reasons, you must continue to take paid sick leave each day until you either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others. 

If you no longer have a qualifying reason for taking paid sick leave before you exhaust your paid sick leave, you may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

In contrast, if you and your employer agree, you may take paid sick leave intermittently if you are taking paid sick leave to care for your child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. For example, if your child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you may take paid sick leave on Mondays, Wednesdays, and Fridays to care for your child, but work at your normal worksite on Tuesdays and Thursdays.

The Department encourages employers and employees to collaborate to achieve maximum flexibility. Therefore, if employers and employees agree to intermittent leave on less than a full work day for employees taking paid sick leave to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons, the Department is supportive of such voluntary arrangements.

Question 22: May I take my expanded family and medical leave intermittently while my child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if I am not teleworking?

Yes, but only with your employer’s permission. Intermittent expanded family and medical leave should be permitted only when you and your employer agree upon such a schedule. For example, if your employer and you agree, you may take expanded family and medical leave on Mondays, Wednesdays, and Fridays, but work Tuesdays and Thursdays, while your child is at home because your child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, for the duration of your leave.

The Department encourages employers and employees to collaborate to achieve flexibility. Therefore, if employers and employees agree to intermittent leave on a day-by-day basis, the Department supports such voluntary arrangements.

Question 23: If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded family and medical leave?  

No. If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

It should be noted, however, that if your employer is paying you pursuant to a paid leave policy or State or local requirements, you are not eligible for unemployment insurance.

Question 28: If my employer reduces my scheduled work hours, can I use paid sick leave or expanded family and medical leave for the hours that I am no longer scheduled to work? 

No. If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.

You may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents you from working your full schedule. If you do, the amount of leave to which you are entitled is computed based on your work schedule before it was reduced (see Question 5).

By The San Diego Workforce Partnership

San Diego Workforce Partnership services and guidance for workers and business impacted by COVID-19

Contact: Andrew Picard, Chief Programs Officer andrewpicard@workforce.org, (619) 643-3650

San Diego Workforce Partnership services and guidance for workers and business impacted by COVID-19

·       Unemployment Insurance benefits can be claimed online or over the phone

·       Supports are available for businesses laying off workers

·       Future updates will be posted here

San Diego, CA—The San Diego Workforce Partnership expects significant impact to businesses, workers and their families related to COVID-19. We are working with our County public health officials, the State of California, and our network of career services providers and monitoring the situation closely. Below are resources and information for workers and employers:

We are encouraging our customers to utilize online workforce resources available as described below. As of March 13, 2020 our Career Centers remain open, but because the COVID-19 crisis continues to evolve day-to-day, we’re encourage customers to avoid when possible any in-person access of workforce services. To call ahead to determine if your career center is still open, reference phone numbers listed here.

Unemployment Information:

If you have lost work or have had your hours reduced we encourage you to apply for Employment Development Department (EDD) Unemployment Insurance (UI). In California Governor Newsom has waived the one-week waiting period for benefits and is looking at expanding UI claim offerings in California.

There are multiple ways to claim benefits virtually. Workers do not need to come in-person:

·       Online: You can file a claim online here.

·       By-phone: Representatives are available at the following toll-free numbers, Monday through Friday from 8 a.m. to noon Pacific time except on state holidays.

·       English 1-800-300-5616

·       Spanish 1-800-326-8937

·       Cantonese 1-800-547-3506

·       Mandarin 1-866-303-0706

·       Vietnamese 1-800-547-2058

·       TTY 1-800-815-9387

·       By Mail or by Fax: File your UI claim by accessing the paper Unemployment Insurance Application. For faster and secure processing, fax the completed application to the number listed on the form. If you mail your application, use the address on the form and allow additional time for processing.

·       How to Apply for UI Benefits (File a Claim) (YouTube)

English | Spanish | Cantonese | Vietnamese | Mandarin

Other Worker Resources:

·       Sign up for our career portal to review local job openings and receive information about helpful workforce programs and services.

·       We are working closely with the State of California for additional emergency benefits to workers impacted by this health crisis with more information on our website to follow.

Benefits to Those Quarantined or Sick:

Paid sick leave law provides time off to many workers. You are entitled to use whatever sick leave you have accumulated.

California law provides for paid family leave, which you may be eligible for if you are providing care for an ill or quarantined family member.

In the event of a particularly long illness, you may be eligible for disability benefits, provided your illness is certified by a medical professional.

If you were exposed to COVID-19 while on the job and in the course of your regular duties, you may also qualify for workers’ compensation.

Businesses with Impacted Workers—We are Here to Help

If you are an employer considering work stoppages, layoffs or furloughs, we encourage you to submit layoff notices online or call (619) 228-2982 to learn about services and information that can assist.

Due to call volume, you may need to leave a voicemail. We will get back to you within one business day to discuss information and services that may assist impacted employees, including Unemployment Insurance information, tax assistance, Work Sharing program to avoid layoffs, financial planning, remote career services and more.

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About the San Diego Workforce Partnership

The Workforce Partnership is the leader for innovative workforce solutions in San Diego County. It funds and delivers job training programs that enable all job seekers to develop the skills and knowledge needed for in-demand careers. The Workforce Partnership also provides ongoing labor market research on the region’s workforce trends and key industries. Its vision is to ensure that every business in our region has access to a skilled workforce and every job seeker has access to meaningful employment. For more information, visit workforce.org.

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By The IRS

IRS Operations During COVID-19: Mission-Critical Functions Continue

"As the COVID-19 (coronavirus) outbreak continues, the Internal Revenue Service is taking multiple steps to protect our employees, America's taxpayers and our partners. Although we are curtailing some operations during this period, the IRS is continuing with mission-critical functions to support the nation, and that includes accepting tax returns and sending refunds.

"As a federal agency vital to the overall operations of our country, we ask for your personal support, your understanding – and your patience," IRS Commissioner Chuck Rettig. "I'm incredibly proud of our employees as we navigate through numerous different challenges in this very rapidly changing environment. Working closely with our partners in the nation's tax community, we will do everything in our power to help."

The following is an overview of IRS operations and advice for taxpayers during this period. The IRS will continue to monitor issues related to the COVID-19 outbreak, and updated information will be posted on a special coronavirus page on IRS.gov.

Tax day is now July 15: Key information for taxpayers

The federal income tax filing due date has been automatically extended from April 15, 2020, to July 15, 2020.

Taxpayers can also defer federal income tax payments due on April 15, 2020, to July 15, 2020, without penalties and interest, regardless of the amount owed. This deferment applies to all taxpayers, including individuals, corporations and other non-corporate tax filers as well as those who pay self-employment tax. See news release IR-2020-58, Tax Day now July 15: Treasury, IRS extend filing deadline and federal tax payments regardless of amount.

Refund Filers: File as soon as you can

Refunds continue: If possible, don't wait until July 15 to file if you're owed a refund; file as soon as possible. Refunds will continue to be paid. For the quickest results, taxpayers should use e-file or Free File with direct deposit to help speed up refunds.

E-file recommended: To avoid delays, the IRS urges taxpayers to file electronically rather than on paper; using direct deposit is also critical to speed up refunds. Most taxpayers can file for free with www.IRS.gov/freefile. The IRS will continue to accept electronic and paper-filed returns for taxpayers who have and prefer to continue to file on paper. The IRS emphasizes that during this period paper returns could require additional time to process; filing electronically remains the best option for taxpayers.

July 15 extension automatic. Taxpayers do not need to file any additional forms or call the IRS to qualify for this automatic federal tax filing and payment relief. Individual taxpayers who need additional time to file beyond the July 15 deadline can request a filing extension by filing Form 4868 through their tax professional, tax software or using the Free File link on IRS.gov. Businesses who need additional time must file Form 7004.

Estimated Payments: The additional time also includes estimated tax payments for tax year 2020 that are due on April 15, 2020 if paid by July 15, 2020.

Extensions beyond July 15: The IRS reminds individual taxpayers the easiest and fastest way to request a filing extension is to electronically file Form 4868 through their tax professional, tax software or using the Free File link on IRS.gov. Businesses must file Form 7004.

Don't forget state tax returns; different deadlines may apply

The July 15, 2020 extension only applies to federal income tax returns and tax payments otherwise due April 15, 2020, not state tax payments or deposits or payments of any other type of federal tax. Taxpayers also will need to file income tax returns in 42 states plus the District of Columbia. State filing and payment deadlines vary and are not always the same as the federal filing deadline. The IRS urges taxpayers to check with their state tax agencies for those details. More information is available at https://www.taxadmin.org/state-tax-agencies."

To finish the article, click here. 

By Jennifer Suberlak, Esq., San Diego SHRM VP of Legislation

DHS Temporarily Modifies Requirements for In-Person Review of I-9 Documents

The Department of Homeland Security (“DHS”) announced a temporary relaxation of the rules for reviewing I-9 documents in person with new employees.  Under normal circumstances, a representative of the employer must review the employee’s identity and employment authorization documents in the employee’s physical presence.  Per the DHS announcement, employers operating remotely due to COVID-19 precautions may now inspect these documents by remote means (e.g., by videoconference, fax, or email) and obtain, inspect, and retain copies of the documents (as opposed to originals) within three business days.  This change is in effect for 60 days (until May 19, 2020) or three business days after the termination of the national emergency, whichever is sooner. 

Notably, this modification applies only to employers operating remotely in response to the COVID-19 pandemic.  Where a new employee is physically present at the worksite, the employer may not avail itself of this alternative process; the pertinent documents must still be reviewed in the employee’s physical presence.  The employer is responsible for providing written documentation of its remote onboarding and telework policy for each employee.

Once normal operations resume, all employees onboarded using remote verification must report to the employer within three business days to complete an in-person inspection of their original identity and employment authorization documents. 

Additionally, any employers served with notices of inspection by DHS during March 2020 and have not already responded will be granted an automatic 60-day extension from the effective date to provide a response.  Further extensions may be granted after the expiration of 60 days, within DHS’ discretion. 

For further information, please click this link: https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance#wcm-survey-target-id. 

By Jennifer Suberlak, Esq., San Diego SHRM VP of Legislation

Further California Guidance Regarding Essential Critical Infrastructure Sectors and Workers

As previously reported in The Resource blog, Governor Gavin Newsom issued Executive Order N-33-20 (the “Order”) requiring all individuals living in the State of California to stay home or at their place of residence, “except as needed to maintain continuity of operation of the federal critical infrastructure sectors” or to obtain critical needs, such as food, healthcare, or prescriptions. 

            On March 20, 2020, the California State Public Health Officer published further guidance regarding essential critical infrastructure sectors and workers.  This guidance is available at:  https://covid19.ca.gov/img/EssentialCriticalInfrastructureWorkers.pdf.

            In summary, California’s State Public Health Officer designated a list of essential critical infrastructure workers to help “state, local, tribal, and industry partners as they work to protect communities, while ensuring continuity of functions critical to public health and safety, as well as economic and national security.”  The essential workers fall in various sectors:  (1) healthcare/public health; (2) emergency service; (3) food and agriculture; (4) energy; (5)= water and wastewater; (6) transportation and logistics; (7) communications and information technology; (8) other community-based government operations and essential functions; (9) critical manufacturing; (10) hazardous materials; (11) financial services; (12) chemical; and (13) defense industrial base.  Essential workers also include those working in industries that support the thirteen enumerated sectors.

            Prior to issuance of the Order, many California counties and cities had issued similar local shelter in place orders.  In some cases, the local orders are not entirely aligned with the state order.  California initially published a frequently asked question (“FAQ”) on the morning of March 21, 2020 that stated: “This is a statewide order.  Depending on the conditions in their area, local officials may enforce stricter public health orders.  But they may not loosen the state’s order.” 

Later on March 21, 2020, California revised its response to the FAQ to state simply, “This is a statewide order.”  As a result, it is unclear whether local directives that are stricter than those in the state order may be enforced.  Until there is clarity, the safest course of action is to determine whether a business may continue operating under the state order, any applicable local order, and only remain in operation only if both are met. 

Thanks to Darcey M. Groden, Legislative & Communications Committee Member, Fisher & Phillips LLP

Governor Newsom issued an executive order requiring all Californians, except for those falling in an exception discussed below, shelter in place effective immediately.  The Order carves out exceptions to maintain the continuity of 16 critical infrastructure sectors identified by the Cybersecurity and Infrastructure Agency.  The Order also carves out exceptions for supply chain operations that provide necessities like food, prescriptions, and health care.  Significantly, there is no end date on the Order. 

Am I In One of the 16 Critical Sectors?

The 16 critical sectors are: (1) Chemical Sector, (2) Commercial Facilities Sector, (3) Communications Sector, (4) Critical Manufacturing Sector, (5) Dams Sector, (6) Defense Industrial Base Sector, (7) Emergency Services Sector, (8) Energy Sector, (9) Financial Services Sector, (10) Food and Agriculture Sector, (11) Government Facilities Sector, (12) Healthcare and Public Health Sector, (13) Information Technology Sector, (14) Nuclear Reactors, Materials, and Waste Sector, (15) Transportation Systems Sector, and (16) Water and Wastewater Systems Sector.

In identifying these sectors, the Cybersecurity and Infrastructure Agency has drafted a memo and provided examples of workers within the industry who are considered essential.  However, the examples are not meant to be exhaustive.  Moreover, because the Governor’s Executive Order applies “except as needed to maintain continuity of operations of federal crucial infrastructures,” it is possible that not all employees for a company will be deemed essential or that all operations of a business will fall within one of the identified sectors.  If in any doubt, consult with your labor and employment attorneys.