Late last week, the County of Fresno Department of Public Health
released an Order requiring all
employers to conduct a daily screening of their employees for
febrile respiratory illness. This order requires employers to “exclude from
work all employees that report symptoms of febrile respiratory illness for
seven days from the day that they are identified as having symptoms.” It also
requires employers to direct employees excluded from work to isolate at home
and notify close contacts to quarantine themselves.
To assist in complying with this order, the Fresno County Department of Public
Health also provided a screening checklist. There are separate checklists for non-medical employers and medical employers. Both of these checklists
direct employers to screen both employees and visitors,
and to conduct this screening at the beginning and end of the day.
We recommend that you include a signature line at the bottom of the checklist
for the employee’s name, signature, date, and time it was filled out.
There is also a recognition that these paid benefit entitlements may cause
significant burdens for some employers. Last Friday, the IRS posted a news release where they promised to take
efforts to “ease compliance.” If tax credits “are not sufficient to cover the
cost of paid leave, employers can seek an expedited advance from
the IRS by submitting a streamlined claim form that will be
released next week.” We expect that information to be released this week.
COVID-19 UPDATE: 03/24/20
Sierra HR Partners is prepared to continue our support for your business throughout the COVID-19 crisis.
First, all employees will be eligible for two weeks of Emergency Paid Sick Leave (or E-PSL). This can be taken if an employee is unable to work due to a need for leave because:
1] The employee is subject to a quarantine or isolation order related to COVID-19;
2] A health care provider advised the employee to self-quarantine due to concerns about COVID-19;
3] The employee is experiencing COVID-19 symptoms and seeks a medical diagnosis;
4] The employee is caring for an individual who is subject to an order described in subsection 1;
5] The employee is caring for his/her son or daughter if school or the place of care has been closed, or the child care provider is unavailable due to COVID-19 precautions; or
6] The employee is experiencing substantially similar conditions specified by the Secretary of Health and Human Services.
Even if you already provide generous sick leave benefits to employees, this federal entitlement is in addition to whatever you already provide. There are daily and total caps on pay for EPSL under the reasons outlined above.
The documentation required for EPSL depends on the reasons that employees take EPSL. We would expect documentation for the first two reasons and for an employee to return under reason 3. They would need to provide it for the person they care for under reason 4.
Second, all employees (employed at least 30 calendar days) will be eligible for expanded FMLA leave. This can be taken if the employee is unable to work due to the need to care for a son or daughter under 18 years of age if the child’s school or place of care has been closed, or the child care provider is unavailable due to a “public health emergency” (meaning related to COVID-19). While the first two weeks are unpaid – though an employee may apply paid sick leave, including EPSL – the next 10 weeks are paid at, by the employer, at least two-thirds an employee’s regular rate of pay.
Employers of fewer than 50 may apply for an exception from the Secretary of Labor, though this process has not yet been outlined. As with EPSL, there are daily and total caps on pay for expanded FMLA leave.
These benefits go into effect April 2, 2020. The required poster will be available within seven days of the enactment of the law.
Third, these federal benefits qualify employers for tax credits of 100% of what is paid in the form of EPSL or expanded FMLA payments. Contact your tax professionals for more information.
We are a business that must stay open. Do we need to minimize on-site employees? Do we need to take preventive action for high-risk employees?
Multiple emergency orders have been issued by local municipalities and by the governor. For example:
Carefully consider these orders to determine whether you can continue to operate. The governor’s order requires all residents to shelter-in-place except those who work in 16 critical infrastructure sectors as identified by the federal government. Businesses throughout the state must determine if they are covered by a local order and the governor’s order.
If your business can operate in light of local and the state Emergency Orders, you then should consider which of your employees are critical to the operations. Minimizing employees coming to work minimizes the risk of transmission of COVID-19. Fewer employees allow you to participate in the social distancing measures that are so vital to limiting the spread of the infection. Even if this is not possible, you still have a responsibility to “maintain a safe and healthful workplace,” and that will likely involve different workplace measures to limit potential viral spread, including canceling or postponing employee meetings, encouraging hand-washing and other safe behaviors, and modifying how employees interact.
Taking preventive action with high-risk populations could be considered discriminatory, and we do not recommend treating them differently than other employee groups (e.g., sending them home or laying them off). Still, employers can, and should, send people home if they appear to be ill, and especially if they exhibit COVID-19 symptoms.
We are an Essential Business, so we must stay open. Some employees are fearful of continuing to work, and in many cases cannot work remotely.
If an employee does not want to work, and if your business has seen a decline that will necessitate reduction in staffing hours, perhaps there is an opportunity for a win-win arrangement that benefits both the anxious employee and the business.
If that is not possible, employers are not required to provide remote work or limited work schedules. When the new federal legislation goes into effect on April 2, employers will have less flexibility in working with employees; employees will be entitled to two weeks of paid sick leave that covers a wide range of COVID-19-related issues, and potentially another 12 weeks if they are impacted by school closures. Before then, we can approach this largely as we might at any other time off. Does the employee have company benefits (like sick leave or vacation) that apply? Is there a federal leave entitlement (like FMLA) for which the employee qualifies? And is there a disability for which the company must provide a reasonable accommodation? If not, then you may require the employee to be at work, regardless of their personal anxiety.
Does Governor Newsom’s State Order supersede the Fresno emergency order?
Both the state order and municipal order are still in effect; however, where the State order is more restrictive we must comply with the State order.
Both orders define “essential” services, though essential services may still experience reduced demand and essential employees are still subject to reduction in hours or layoff.
Should I furlough employees or lay off employees?
We’ve seen petitions from politicians, including Valley politicians, to take advantage of the Families First Coronavirus Response Act provisions and provide sick leave and FMLA benefits to employees, rather than laying them off, and then collect the 100% tax credits allowed under the legislation. This may be a reasonable measure for many organizations. Other organizations are facing significantly reduced revenues, and it will be difficult to provide these paid benefits even when you anticipate future tax credits. Tax credits may or may not provide a feasible solution for your business.
It may be prudent to make any employment decisions before April 2. ‘Furloughed’ employees and employees with reduced schedules who have not been laid off will qualify for the emergency paid sick leave and expanded FMLA benefits on April 2. Employees who are laid off before then may apply for unemployment insurance benefits.
What if an employee has reduced hours but is not laid off?
Employees may still file for unemployment benefits. Partial unemployment benefits are available for those who have reduced hours, and they can file for unemployment and not be required to look for work. The EDD is recommending that workers file for unemployment benefits online.
Employees in this circumstance would be eligible for emergency paid sick leave and expanded FMLA benefits.
What will happen to employee group health insurance benefits if they are laid off or have reduced hours? If an employee is laid off, he/she would become eligible to continue benefits through COBRA. If they chose not to elect COBRA coverage, their coverage would end (typically at the end of the month, depending on the terms of your plan).
If an employee works reduced hours, (s)he may become ineligible for your company-sponsored plan. We recommend that you call your benefits provider about eligibility criteria, and whether benefits providers are making accommodations during the pandemic. Employers may also elect to provide employees with assistance in paying health coverage under COBRA for a limited time. This could be a good opportunity to obtain a waiver or release of claims in return for payment of COBRA premiums.
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.
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.
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.
Yes… we’re open and here for you! Sierra HR Partners, Inc. 7112 N. Fresno Street, Suite 450 Fresno, CA 93720 T. 559.431.8090 | F. 559.437.0500
Sierra HR Partners is prepared to continue our support for your business throughout the COVID-19 crisis.
We understand that you have many questions about how to approach HR functions in light of the COVID-19 outbreak. Reduced client traffic, safety concerns, and government directives are creating uncertainty in almost every area of your business, not to mention our daily lives. Please rest assured that Sierra HR Partners is working to stay up-to-date on the health precautions, employment laws, and personnel policies that affect you during this time, such as:
Pending legislation regarding leaves of absence and paid sick leave
On-site health protections for employees (PPE, distancing, etc.)
How to address employees who may have been exposed to the Coronavirus or who appear to have symptoms
How to address employees who express significant concerns about performing public-facing job tasks
Reductions in hours and/or furloughs, and related paid benefits questions
Precautions for employees working from home
Our certified Consultants are standing by to take your calls and e-mails as we navigate this situation together.
We are also developing weekly webinar topics including maintaining workplace morale and effectively communicating staffing reductions. You will receive more information via e-mail in the week ahead. If there are other topics you would like us to present, please let us know!
We have established remote connections for our Consultants and other personnel so we can continue to support you in the event of a government-recommended office closure. Our ability to communicate with clients through e-mail and phone, and to work on existing HR projects with you, will be as seamless as possible.
We appreciate the ongoing opportunity to be of service, especially during difficult times. We’re confident that today’s challenges will provide valuable lessons (and a few funny stories!) that will benefit all of us in the years to come.