The novel coronavirus (also known as COVID-19) is impacting nearly every facet of daily life in most California communities, and employers are struggling to balance the competing interests of protecting their employees and their businesses while also doing their part to halt the spread of this highly contagious virus. On top of that difficult balancing, employers have yet another burden – to ensure that, whatever they do, they are in compliance with all local, state, and federal employment and occupational safety laws.
Over the past few days, we have been inundated with emails and calls from our employer-clients asking questions about the coronavirus situation. So we decided to write this blog post to provide summary answers to some of the most common questions we’re getting.
What can we do to protect our workforce?
California law explicitly states that employers are required to provide a safe and healthy workplace for their employees. Thus, employers must take steps to protect their employees from known hazards, including the risk of transmitting infections like coronavirus. These steps include (a) actively encouraging sick employees to stay home, (b) reminding sick employees of their right to use accrued paid sick leave (“PSL”) or paid time off (“PTO”), (c) providing “no-touch” trash cans and hand sanitizer, and (d) training employees on the benefits of proper hand-washing. See the CDC’s full list of employer recommendations here; see the WHO’s full list of recommendations here.
Note, however, that the obligation of employers to provide a safe and healthy workplace does not give employers the right to ask employees about private medical information. Nor does it give employers the right to subject employees to medical examinations, such as taking an employee’s temperature to see if he or she has a fever. However, if an employee comes to work with obvious symptoms of a respiratory infection (such as fever, cough, and/or shortness of breath), the employer has the right – and, indeed, the obligation – to separate the employee from other employees and send him or her home. The employer can require that the employee not return to work until he or she is fever-free for at least 24 hours.
Employers can also ask employees if they: (1) have recently traveled to a country that has been designated as high-risk for coronavirus transmission by the CDC (including China, Italy, Iran, and South Korea as of the date of this writing); (2) may have been exposed to coronavirus; and (3) have had contact with anyone who has recently traveled to a CDC-designated high-risk country or has otherwise been exposed to coronavirus. If an employee answers “yes” to any of the above questions, the employer can request that the employee self-quarantine at home for up to 14 days, which is believed to be the incubation period for coronavirus.
Can we close our office and implement a mandatory work-from-home policy?
For almost all employers, the answer is “Yes.” Note that some employers in emergency-essential industries (e.g., doctors, hospitals, pharmacies) may be compelled by the declared state of emergency to require their employees to report to work. For these employers, implementing a work-from-home policy may not be an option. But for all other employers, we are strongly recommending it for those clients whose business model and operational realities make working from home a feasible option.
For those employers who adopt a mandatory work-from-home policy, the employer’s obligation to pay its employees would be just the same as if the employees were coming to work, with one exception. That exception is that, to the extent those employees are now using home internet and personal cell phones to do their work from home – or incurring other new costs or expenses due to the arrangement – the employer would be obligated under California Labor Code §2802 to reimburse the employee for those expenses. For any employer thinking about adopting a mandatory work-from-home policy, we recommend that you work with employment counsel to ensure that your policy complies with Labor Code §2802. We also recommend that you work with counsel to ensure that you work-from-policy accurately captures all of your employees’ time properly, including their meal and rest periods, so that you don’t run afoul of any wage-and-hour rules.
Do we have to offer a leave of absence to a sick employee?
If an employee requests time off due to coronavirus (or any other illness), the employer should engage in the “interactive process” to determine (a) if the employee’s illness renders him/her “disabled” under the law (which is almost always answered “yes” given California’s liberal definition of that term); (b) if so, how the employee’s disability impacts his/her ability to perform the essential functions of his/her job; and (c) if there is a “reasonable accommodation” that the employer could offer that would allow the employee to perform his/her job.
For many employers facing this situation, granting time off until the employee is able to return to work is a reasonable accommodation. In the case of an employee with confirmed coronavirus, it’s more than a reasonable accommodation – it may be a required act on the part of the employer to keep the rest of its workface safe and healthy.
Do we have to pay employees who have coronavirus or are quarantined?
Yes, under some circumstances.
A sick employee who has PSL available pursuant to California’s paid sick leave laws must be allowed to use such leave if the employee is absent due to: (1) the employee’s own illness; or (2) the diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member. According to the California Department of Industrial Relations, “preventative care” may include self-quarantine as a result of potential exposure to coronavirus or recent travel to a high-risk area.
However, employers may not require a sick employee to use accrued PSL hours; it is up to the employee whether to use any such available leave. If the employee elects to use PSL, the employer can require they take a minimum of one or two hours (depending on the employer’s location) of PSL. The determination of how much PSL actually gets used beyond this minimum, however, is entirely up to the employee.
Additionally, the terms of some employers’ PTO policies are written broadly enough to allow an employee to use accrued PTO for any reason. If your policy is written that broadly, it would allow an employee to use accrued PTO in addition to accrued PSL to recover from coronavirus, to care for a family member who has been diagnosed with coronavirus, to self-quarantine due to exposure to coronavirus, or for any other purpose.
Once an employee has exhausted all of his/her accrued PSL and, if applicable, PTO, whether the employer is required to continue to pay an employee depends on the employee’s exemption status and the reason for the absence.
— Non-exempt employees
Non-exempt employees are generally only entitled to be paid for hours they actually work. Therefore, non-exempt employees are not entitled to be paid if they are absent from work, not working, and do not have any more accrued PSL and, if applicable, PTO.
Note that, if a non-exempt employee reports for a regularly scheduled shift but is sent home or allowed to work less than half of his/her shift, then the employee will be entitled to “reporting time pay” equal to half of the employee’s usual or scheduled day’s work, with a minimum of 2 hours’ of pay and a maximum of 4 hours’ pay. More information about reporting time pay is available here.
For a non-exempt employee who is quarantined or working from home, that employee would be entitled to pay for all hours he/she actually worked while quarantined or while working from home.
Although non-exempt employees without any accrued PSL and, if applicable PTO would not be paid when not working during any coronavirus-related absence, we are advising clients to grant unpaid leave to these employees for the duration that we remain in a state of emergency.
— Exempt employees
This issue is more complicated for exempt employees. In California, employers generally cannot make deductions from an exempt employee’s salary for absences caused by sickness unless the employee is absent for a full week or more. Thus, if an exempt employee works one day during a workweek, that exempt employee is entitled to be paid his/her full salary for that week regardless of any later absences that week due to coronavirus (or any other illness).
For an exempt employee who is self-quarantined and working from home, the same rule applies: if that exempt employee works one day during a workweek, that exempt employee is entitled to be paid his/her full salary for that week. However, if an exempt employee is actually sick and unable to work for more than a week while at home, then the employer is not required to compensate the exempt employee for that time after all PSL and, if applicable, PTO is extinguished. But we urge our clients to tread carefully (and contact us) before docking any exempt employee’s salary due to illness. It may not be “worth it,” for many reasons.
— State benefits
Employees who are diagnosed with coronavirus, quarantined due to exposure, absent from work in order to care for an ill or quarantined family member, or required to work reduced hours for coronavirus-related reasons may also be entitled to certain benefits from the State of California. More information about California state benefits is available here.
Are employees diagnosed with coronavirus, or caring for a family member with coronavirus, eligible for FMLA or CFRA leave?
California employers with 50 or more employees must comply with both the federal Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”).
In order to be eligible for FMLA or CFRA leave, an employee working for a covered employer must have a “serious health condition” or have a family member with a “serious health condition.” This serious health condition must be certified by a physician. The employee must also have worked at least 1,250 hours in the previous 12 months for the employer.
For some people, the symptoms of coronavirus may be mild; for others, especially older employees or those with underlying health issues, a coronavirus infection will undoubtedly constitute a “serious health condition.” Interestingly, influenza is not considered a “serious health condition” for purposes of FMLA, but we do not, yet, have any guidance from the Department of Labor as to whether coronavirus will be classified similarly. For now, in the absence of any guidance, we recommend that employers perform a case-by-case analysis for any employee who requests a leave of absence under FMLA and/or CFRA. In performing this analysis for coronavirus, it’s our recommendation that employers take a generous, flexible approach and err on the side of granting the leave.
If an employee is quarantined or diagnosed with coronavirus, what should we tell other employees?
Employers cannot share an employee’s private medical information with other employees. Therefore, employers cannot share the identity of an employee who has been diagnosed with coronavirus or explain why a given employee is absent from work.
Employers should, however, tell employees that they may have been exposed to coronavirus without identifying the employee(s) who has/have been exposed or tested positive for coronavirus. We are recommending that employers in this situation refer their employees to the CDC’s general coronavirus guidance, available here, so that they can perform a proper risk assessment.
The coronavirus pandemic is going to change life-as-we-know-it for a while. Conditions are changing quickly, and we expect local, state, and federal governments to move quickly in the hours and days ahead to take more steps to ensure the public’s health and safety. That could mean that the information about is outdated by the time you read this blog post. That’s how swiftly the virus is moving, and how swiftly our governments’ guidance and regulations are changing. Therefore, if you are a California employer with questions about how the coronavirus emergency impacts your business now, we urge you to contact employment counsel so you can get the most up-to-the-minute expert guidance.