As your HR resource, Sierra HR Partners will be here providing on-going updates to help you navigate the swiftly changing COVID-19 events and requirements. Here are answers to some of the Frequently Asked Questions we’ve fielded within the past 24-48 hours.March 19, 2020 4:35 pm
What impact does Emergency Order 2020-02 have on my business if I’m located in Fresno?
Fresno City Manager Wilma Quan has signed the order calling for all individuals living in the City to shelter at their place of residence except to provide or receive certain essential services… effective 12:01 a.m. on Thursday, March 19, 2020, and continuing through 11:59 p.m. on Tuesday, March 31, 2020 (subject to extension). In summary, unless a business meets the definition of being exempted from the order as an “Essential Business”, it must cease all activities at facilities located within the City except for Minimum Basic Operations consisting exclusively of employees or contractors performing activities at their own residences.
Which businesses are considered “Essential Businesses” and would be exempted from the Order?
Following is an excerpt from the Order:
1.6. For the purposes of this Order, “Essential Businesses” means:
1.6.1. Healthcare Operations and Essential Infrastructure;
1.6.2. Grocery stores, certified farmers’ markets, farm and produce stands, supermarkets, food banks, convenience stores, and other establishments engaged in the retail sale of canned food, dry goods, fresh fruits and vegetables, pet supply, fresh meats, fish, and poultry, and any other household consumer products (such as cleaning and personal care products). This includes stores that sell groceries and also sell other non-grocery products, and products necessary to maintaining the safety, sanitation, and essential operation of residences;
1.6.3. Food cultivation, including farming, livestock, and fishing;
1.6.4. Businesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals;
1.6.5. Newspapers, television, radio, and other media services;
1.6.6. Gas stations and auto-supply, auto-repair, and related facilities;
1.6.7. Banks and related financial institutions;
1.6.8. Hardware stores;
1.6.9. Plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, Essential Activities, and Essential Businesses;
1.6.10. Businesses providing mailing and shipping services, including post office boxes;
1.6.11. Educational institutions—including public and private K-12 schools, colleges, and universities—for purposes of facilitating distance learning or performing essential functions, provided that social distancing of six-feet per person is maintained to the greatest extent possible;
1.6.12. Laundromats, dry cleaners, and laundry service providers;
1.6.13. Restaurants and other facilities that prepare and serve food, but only for delivery or carry out. Schools and other entities that typically provide free food services to students or members of the public may continue to do so under this Order on the condition that the food is provided to students or members of the public on a pick-up and takeaway basis only. Schools and other entities that provide food services under this exemption shall not permit the food to be eaten at the site where it is provided, or at any other gathering site, with the exception of hospital cafeterias, which may allow for food to be eaten on site;
1.6.14. Businesses that supply products needed for people to work from home;
1.6.15. Businesses that supply other essential businesses with the support or supplies necessary to operate, including, but not limited to, waste disposal, recycling and electronics recycling;
1.6.16. Businesses that ship or deliver groceries, food, goods or services directly to residences;
1.6.17. Airlines, taxis, and other private transportation providers providing transportation services necessary for Essential Activities and other purposes expressly authorized in this Order;
1.6.18. Home-based care for seniors, adults, or children;
1.6.19. Residential facilities and shelters for seniors, adults, and children;
1.6.20. Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities;
1.6.21. Childcare facilities providing services that enable employees exempted in this Order to work as permitted.
If my organization falls under the classification of an ‘Essential Business’, as an employer, what should I be doing to prevent the spread of infection at my office?
If you are exempted as an Essential Business and still have staff functioning on site, you must comply with the Social Distancing Requirements including maintaining at least six-foot social distancing from others, and adhering to all CDC and Public Health guidelines listed below.
In addition, safety regulations will vary from business to business based on the kind of work that is performed. For example, healthcare or first response employers must adhere to the safety standard covering aerosol transmissible diseases (like the coronavirus) and the safety standard covering bloodborne pathogens. While these standards may not be required for other industries, it may still be a good practice to consider these safety guidelines.
We advise that you review and implement CDC interim guidance for employers (see also here) and the guidelines from the CA Department of Public Health.
Follow the recommended preventative measures, including:
• Continue disinfecting door handles and other surfaces;
• Discussing hand-washing with employees;
• Limiting in-person meetings;
• Providing virtual work where possible;
• Foregoing unnecessary travel; and
• Practicing “social distance” measures — keeping a distance of six feet from others.
I have an employee who is sick – can I send her home?
Employers have a legal obligation to maintain a “safe and healthful workplace.” This can include sending employees home from work if they are at risk of spreading an infection or if they have traveled to high-risk areas where the outbreak is more widespread.
If an employee reports to work and you send him/her home because work is slow, (as opposed to sending him/her home for quarantine purposes), be aware that you trigger reporting time pay obligations. If you require an employee to report to work and then furnish him/her with fewer hours than promised, he/she is entitled to pay for half of their expected shift (no less than two hours and no more than four hours).
Can I take an employee’s temperature?
The EEOC claims that measuring an employee’s body temperature may be considered a medical examination. The EEOC admits, however, in the event of a pandemic, that employers may measure employees’ body temperature.
The Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status. The employer must show (1) that the inquiry or exam is job-related and consistent with business necessity, or (2) that the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.
The EEOC’s position during a pandemic is that employers should rely on the latest CDC and state or local public health assessments to determine whether the pandemic rises to the level of a “direct threat.” The assessment by the CDC as to the severity of COVID-19 will provide the objective evidence needed for a medical examination.
Can I require an employee to get cleared by a doctor before returning to work?
Employers may require an employee to provide medical documentation that they can return to work. This may be difficult if the strain on the healthcare system is significant.
I have an employee refusing to come into work – can I require them to report to work?
Whether an employee can be disciplined for refusing to work depends in part on their risk for contracting the disease. It may also depend on governmental orders, such as the Fresno City Emergency Order. As with all terminations, such a decision would carry some risk, and it would be advisable to contact your legal counsel.
Are employees who wish to self-quarantine at home permitted to take time off?
Employees are permitted to take time off using their paid sick leave. Paid sick leave can be used for, among other things, “preventive care,” so employees may use paid sick leave even if they are not ill. In most cases, employee sick leave will be very limited compared to the potential length of this crisis.
Once sick leave has been exhausted, employees may use other paid time off, such as vacation, in accordance with company policy.
If no other paid time off benefits are available, employees may still be able to take time off under other provisions. California law allows employees to take up to 40 hours of leave per year for school-related emergencies, and employees can apply for unemployment insurance benefits in this case (see below). In addition, if employees provide medical certification of a need for an accommodation, the employer is obligated to engage in the interactive process and determine whether a leave of absence would be reasonable.
The DIR has provided answers to Frequently Asked Questions about time off.
How are employees going to be paid if they’re off work?
There is federal legislation that has passed the House and Senate, which was signed by President Trump on March 18, 2020, and is forecasted to become effective April 2, 2020. We will provide more information once the bill is finalized.
Until then, employees have access to different benefits based on their circumstances.
- If an employee is unable to work due to quarantine or illness related to COVID-19 as certified by a medical professional, they may apply for disability benefits. Disability benefits will provide between 60% and 70% of an employee’s wages. The standard one-week waiting period has been waived.
- If an employee is unable to work due to caring for a family member who is quarantined or ill related to COVID-19 as certified by a medical professional, they may apply for Paid Family Leave benefits. PFL benefits will provide between 60% and 70% of an employee’s wages.
- If an employee faces job loss or reduced hours related to COVID-19, even if they remain employed, they may apply for unemployment benefits (including partial unemployment benefits). The EDD has also advised that the employer “may” be eligible for unemployment benefits “if your child’s school is closed, and you have to miss work to be there for them.” The standard one-week waiting period has been waived.
The EDD has provided answers to Frequently Asked Questions regarding applying for disability or unemployment insurance benefits.
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Sierra HR Partners, Inc.
7112 N. Fresno Street, Suite 450
Fresno, CA 93720
T. 559.431.8090 | F. 559.437.0500