COVID-19 Update: California Emergency Paid Sick Leave and Updated EEOC Guidance

September 14, 2020 8:24 pm

On September 9th, Governor Newsom signed AB 1867, which expands the responsibility to provide employees with supplemental paid sick leave to all employers of 500+ employees, and to health care organizations that were able to exempt themselves from the federal Families First Coronavirus Response Act (FFCRA.)

Similar to federal emergency paid sick leave, covered employers must provide up to two weeks of supplemental paid sick leave for reasons related to COVID-19, including when a worker is:

1. Subject to a federal, state or local quarantine or isolation order related to COVID-19;

2. Advised by health care provider to self-quarantine or self-isolate due to concerns related to COVID-19;

3. Prohibited from working by the employer due to concerns related to the potential transmission of COVID-19. Two weeks is defined as 80 hours for full-time employees (working an average of 40 hours per week). Part-time employees are entitled to the average number of hours they are normally scheduled to work in a two-week period. The law contains a special provision for firefighters, stating that if the firefighter was scheduled to work more than 80 hours in the two weeks preceding the leave, he/she is entitled to the total number of hours they were scheduled to work in those two weeks.

The amount of pay must be equal to the employee’s regular rate of pay, up to a maximum of $511 per day and $5,110 in total per employee.

If an employer has already provided supplemental/emergency paid sick leave under Executive Order N-51-20 (applicable to food sector workers) or under a local or federal law (such as a local city ordinance or the federal FFCRA), the employer is not required to provide additional sick leave under this bill.

Unlike the FFCRA, supplemental paid sick leave payments under AB 1867 do not appear to be deductible from the employer’s payroll tax obligations. Covered employers may wish to speak with a tax professional for additional guidance.

AB 1867 takes effect immediately, but covered employers have ten days (until September 19, 2020) to begin providing supplemental paid sick leave to employees. There will also be an employee notice requirement, and the Labor Commissioner will provide a model notice by September 16th.

On September 8th, the Equal Employment Opportunities Commission (EEOC) issued updated guidance on COVID-19 and its interaction with federal employment laws. Helpfully, they’ve used “9/8/20” to indicate where they’ve offered new guidance or revised old questions. There are 20 questions where guidance has changed or been added since it was originally issued in April 2020.

Employee Health Screenings

Depending on how your organization administers screenings, you will likely be able to continue your current process, as the EEOC affirmed that screening does not violate federal law. Employers are still permitted to screen employees entering the workplace consistent with guidance offered by the CDC or other public health agencies. Screening should be conducted similarly for all employees, and employees who refuse to participate may be barred from the workplace.

Because teleworking employees are not physically interacting with others, screening employees who do not come into the office is not permitted. The EEOC clarified that employers may ask employees questions about employee travel during the pandemic because these are not disability-related inquiries. They added, “If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal.” The EEOC cautioned that though employers may ask whether employees have had contact with anyone diagnosed with COVID-19 or showing symptoms associated with COVID-19, they may not otherwise ask about a family member’s condition.

Confidential Information

If you learn that an employee is positive for COVID-19, exercise care in how that information is shared and stored. It is important not to share confidential medical information, and only a limited number within an organization will need to know the identity of an employee who is infected with COVID-19. Information about infected employees should not be stored in places where others may have access.

The EEOC advises employers, though, that protecting medical information does not prevent employers from notifying those who may have come into contact with the infected employee in a generic way.

The DFEH suggested a notification such as: “[Employer] has learned that an employee at [office location] tested positive for the COVID-19 virus. The employee received positive test results on [date]. This email is to notify you that you have potentially been exposed to COVID-19 and you should contact your local public health department for guidance and any possible actions to take based on individual circumstances.”

Reasonable Accommodation

The EEOC also included updated guidance on providing reasonable accommodations. Because each situation is different, please call Sierra HR Partners if an employee requests an accommodation, including continued telework.

As always, Sierra HR Partners is here to help you analyze these new developments and understand how they may impact your company. Please contact us with any questions you have!

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