The Virus That Stole Christmas: California’s Regional Stay Home Order
Blog post from Doug Larsen:
At noon on Thursday, December 3, 2020, Governor Newsom issued a “Regional Stay Home Order.” This order applies to any region in which the ICU capacity drops below 15 percent. It is anticipated that the San Joaquin Valley region will fall below the 15% capacity within days.
This order severely restricts business activities. We recommend that you review the order and determine whether your business can remain open, and if so, what restrictions have been placed on your operations.
What happens when the ICU Capacity Drops?
Closure of these business sectors:
Playgrounds, indoor recreational facilities; salons and barbershops; personal care services; museums, zoos and aquariums; movie theaters; wineries; bars, breweries and distilleries; family entertainment centers; cardrooms and satellite wagering; limited services; live audience sports; and amusement parks.
Additional modifications to these business sectors while maintaining 100 percent masking and physical distancing:
Outdoor recreational facilities. No food, drink or alcohol sales; no overnight stays.
Retail & Shopping Centers. Limited to 20 percent capacity (with metering); no eating or drinking; special hours for seniors and others with chronic conditions or compromised immune systems.
Hotels & Lodging. For critical infrastructure support only. This means no tourist guests.
Restaurants. Take-out or delivery only.
Offices. Remote working only except for critical infrastructure sections where remote working is not possible.
Worship & Political Expression. Outdoor services only.
Entertainment Production & Professional Sports. Operations permitted without live audiences.
Remain Open. Critical infrastructure; schools already open for in-person learning; non-urgent medical and dental care; child care and pre-K.
Private Gatherings are Restricted.
In the purple tier, meaning widespread infection, private gatherings must take place outdoors. Attendees must wear masks and physically distance. No more than three separate households may gather.
COVID-19 Update: CAL/OSHA Implements Extensive New Requirements
Before the Thanksgiving holiday, Cal/OSHA proposed emergency regulations to protect workers from COVID-19. These regulations have been approved by the Office of Administrative Law and are in effect as of yesterday, December 1st.
Complying with these regulations will be, as Doug Larsen has written at his California HR blog, “extremely time-consuming and expensive.” They include detailed and comprehensive requirements for a written COVID-19 Prevention Plan (CPP), workplace notifications, testing following a workplace exposure, and even providing “exclusion pay” to workers while they isolate.
Many employers have already created infectious disease prevention and response plans, perhaps based on guidance provided by the CDC or by the state of California at covid19.ca.gov. Sierra HR Partners has assisted many clients in developing these plans. Those plans will need to be updated in order to comply with the extensive new Cal/OSHA regulations.
The Cal/OSHA standard will apply to most businesses in California. There are exceptions for companies with a single employee or employees working from home, and for those covered by the Aerosol Transmissible Diseases standard (primarily healthcare organizations.)
The written CCP will look much like the Injury and Illness Prevention Program (IIPP) required by California law. It needs to include, for example, your methods for communicating with employees, and for employees to communicate with you. As with your IIPP, you will need to make individualized assessments of your business and circumstances to develop customized plans and policies. Most employers will need to create CCPs with 11 specific sections, including communication, hazard evaluation, return-to-work criteria, and others.
When there is a COVID-19 Case
As mentioned above, these regulations require employers to provide certain benefits in the event of a COVID-19 case in the workplace.
Businesses must notify employees who may have been exposed of the potential exposure within one business day. This must be done in a way that protects the privacy of any employee with COVID-19.
- Businesses must also notify the local Health Department once there are three or more COVID-19 cases in a 14-day period. This must be done within 48 hours.
- In the event of a COVID-19 case, testing must be provided to employees at no cost and during work hours if there is a possibility that they were exposed.
- In the event of an outbreak – when there are three or more COVID-19 cases within 14 days – testing must be provided at the outset and again one week later, and continuously/weekly afterwards for those who remain onsite.
The exclusion criteria in the Cal/OSHA regulations generally follow CDC recommendations.
- Employees exposed to a COVID-19 case must be excluded from work for 14 days from the last known exposure. (It has been reported that the CDC now recommends a self-quarantine of just 7-10 days from the last date of exposure, but California employers are advised to follow the more cautious Cal/OSHA standard.)
- Employees who are symptomatic must be excluded from work for at least 10 days, and may return to work once any fever has been resolved for at least 24 hours without the aid of medication and other symptoms are improving.
- Employees who test positive must be excluded from work for 10 days from the date the test was taken.
Exclusion Pay and Continued Benefits
The regulations require employers to “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits” if the employee who is excluded from work is otherwise able and available to work. According to the Cal/OSHA FAQ page, this means that “the employer must continue to provide the employee’s pay and benefits. An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount an employee receives in other benefit payments.”
Exclusion pay does not apply if the employee is unable to work for reasons other than isolation necessitated by COVID symptoms or exposure, such as a reduced work schedule. It also does not apply if the if the employer “establishes the employee’s exposure was not work-related.” This may involve documentation of the employee’s statement that a friend or family member is COVID-positive or other indication of non-workplace exposure.
This information is not meant to be comprehensive, but to introduce our partners to the extensive and complex requirements passed by Cal/OSHA. Please read Doug Larsen’s blog post mentioned above for more details. We encourage you to review your written safety plans in light of these new regulations (or to create them for the first time).
Businesses will need to think carefully about the policies and procedures they have in place. Many companies have allowed a somewhat relaxed atmosphere among employees, and activities should be reassessed in the face of these weighty regulations. While telework arrangements may not be ideal for efficiency and collaboration, they may be preferable for the near-term in an effort to better control potential COVID-19 cases and exposure.
Sierra HR Partners is ready to guide you in the development of your unique CCPs and discuss your other questions related to the new requirements. In some circumstances, legal guidance may be necessary. We know this information feels extremely heavy, but rest assured we will be here to help.
October 2020: New Leave Requirements for Employers of 5+
Last month, Governor Newsom signed into law SB 1383, which expands the coverage of the California Family Rights Act (CFRA) to employers of 5 or more employees effective January 1, 2021. These leave requirements will have a significant impact on virtually all California businesses, including those currently covered by CFRA and FMLA. Below is a brief overview of key points.
Leave must be granted to an individual who has been employed for at least one year, and has worked at least 1,250 hours in the 12 months preceding the start of leave. It will be an unlawful employment practice for an employer to interfere with, restrain, or deny an employee’s ability to exercise his/her right to time off.
Duration of Leave
Eligible employees may take up to 12 workweeks in a 12-month period, and the leave may be continuous or intermittent. Because CFRA and other leave laws have differing definitions of a health condition and family members, employees may be able to take more than 12 weeks off in a year for various qualifying reasons. Leave is unpaid, and depending on the circumstances, an employer may require the use of accrued vacation and/or sick leave.
Qualifying Reasons for Leave
An eligible employee may use protected leave for their own serious health condition, to care for a family member’s serious health condition, or to bond with a new child following birth, adoption or foster care placement. Leave may also be taken because of a qualifying exigency relating to the active military service of an employee’s spouse, domestic partner, child, or parent.
Differences From FMLA
Covered family members under CFRA will now include a parent, spouse/domestic partner, child, sibling, grandparent, or grandchild. The federal Family Medical Leave Act (FMLA) does not include siblings or grandparent/children in its definition of family member. Employers of 50+ employees must be aware that an employee may be able to take 12 weeks of CFRA leave for certain family members, and still have all 12 weeks of FMLA leave available for other qualifying reasons.
CFRA specifically excludes pregnancy and related medical conditions from its definition of a serious health condition. California’s pregnancy disability leave (PDL) law already provides up to 4 months of protected leave for these reasons. Employers of 5 to 49 employees may be required to provide up to 4 months of PDL, followed by up to 12 weeks of bonding leave under CFRA. If the employer has 50+ employees, PDL runs concurrently with FMLA leave.
Upcoming training events:
Supervisor Training: All sessions are 9:00am to 11:15am, $49 per attendee
Employee Training: All sessions are 9:00am to 10:15am, $39 per attendee
The Department of Labor Amends its FFCRA Regulations
On August 3, 2020 we wrote about the decision of the Southern District of New York invalidating certain provisions of the DOL regulations related to emergency paid sick leave and leave under the expanded family and medical leave act. The DOL recently responded to the court’s order. Here is some background, on what happened and how the DOL responded.
The Families First Coronavirus Response Act (“FFCRA”) created two paid leave provisions related to COVID-19. Under Emergency Paid Sick Leave (“EPSL”), an employee can take up to 10 days (two weeks) of paid time off under certain conditions when unable to work due to COVID-19 factors. Emergency Family and Medical Leave Expansion (“FMLAE”) allows an employee to take up to an additional 10 weeks of paid time off to care for a child due to the closure of the child’s school or place of care.
The DOL enacted regulations to implement the law. However, the federal District Court for the Southern District of New York determined that four of the regulations were invalid:
1. The requirement under 29 C.F.R. § 826.20 that paid sick leave and expanded family and medical leave are available only if an employee has work from which to take leave;
2. The requirement under 29 C.F.R. § 826.50 that an employee may take FFCRA leave intermittently only with the employer’s approval;
3. Pursuant to 29 C.F.R. § 826.30(c)(1), the definition of an employee who is a “health care provider” who is excluded eligibility for EPSL or FMLAE leave; and
4. Pursuant to 29 C.F.R. § 826.100, the requirement that employees must provide the employer with certain documentation before taking leave.
In response to the court’s opinion, the Wage and Hour Division (“WHD”) of the DOL issued the following amendments to the regulations:
1. The qualifying reason for EPSL and FMLAE leave must be the actual reason the employee is unable to work, as opposed to a situation in which the employee would have been unable to work regardless of whether he or she had a qualifying reason such as if the worksite had closed. The WHD based this on the law’s “but-for” causation standard.
2. The WHD stood firm on requiring employer approval to take intermittent FMLAE leave. It concluded that avoiding any disruption of business operations is a principle of the FMLA and that the rule requiring employer approval best meets that principle.
3. Health care providers who can be excluded from these leaves are those who fall within the FMLA’s definition of a health care provider under 29 C.F.R. §§ 825.102 and 825.125. This includes physicians and others who make medical diagnoses, as well as employees who are health care providers based on their roles and duties, such as persons “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”
4. Documentation required to take either EPSL or FMLAE need not be given to the employer before taking the leave, but may be given “as soon as practicable.”
These amendments to the DOL regulations may affect your business. Please consider them before making decisions regarding eligibility and documentation for any leaves.
COVID-19 Update: California Emergency Paid Sick Leave and Updated EEOC Guidance
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.
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.”
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!