COVID-19

Notification Requirements for Business COVID-19 Exposures

September 28, 2020 By Israel Samuels LLP Leave a Comment

On September 17, 2020 the Governor signed AB 685, a new law, to be in effect from January 1, 2021, until January 1, 2023, that requires employers to comply with specific notification requirements any time there has been a potential COVID-19 exposure in the workplace. AB 685 has also fortified Cal/OSHA’s COVID-19 regulation enforcement abilities.

Whenever an employer is put on notice that a “qualifying individual” (someone who tested positive for COVID-19 or is subjected to an isolation order) was in the workplace while they were considered potentially infectious, the employer must provide written notice to individuals who “may have been exposed” in the workplace, including employees, subcontractors, and union representatives. This notice must be provided within one business day of when the employer is put on notice.

Employers with multiple buildings or floors do not necessarily need to provide notice throughout the entire company— the notice requirement is limited to the specific “worksite” the qualifying individual entered, not the entire company or facility site.

Employers also must notify the local public health department within 48 hours of becoming aware of a COVID-19 workplace “outbreak” (as defined by the State Department of Public Health). This notification requirement encompasses the number of COVID-19 cases at the worksite, as well as names, occupations and worksites of qualifying individuals. Employers must also notify the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite. The California Department of Public Health currently defines an outbreak as three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.

The notice must advise individuals who were at the workplace during the qualifying individual’s infectious period that they “may have been exposed to COVID-19.” The notice also must inform all employees “who may have been exposed” about benefits to which employees may be entitled under federal, state, or local law, including workers’ compensation, paid sick leave, negotiated leave, and anti-retaliation and anti-discrimination protections. Those individuals entitled to receive the notice must, in addition, be notified about the disinfection and safety plans that the employer plans to implement and complete per CDC guidelines. The written notification must be sent in a manner normally used by the employer to communicate employment-related information, must be in both English and the language understood by the majority of the employees, and must protect employee and individual privacy Employers are required to maintain records of the written notification for at least three years.

Cal/OSHA is authorized to shut down a worksite if it determines the worksite presents an “imminent hazard.” However, AB 685 adds Section 6325(b) to the Labor Code, which reiterates that the Division of Occupational Safety and Health can close down a business if it deems there is an “imminent hazard” related to potential COVID-19 transmission.

AB 685 also exempts the Division from sending notices of intent to issue serious citations (as is normally required) when the alleged hazard is COVID-19 related. Ordinarily, if Cal/OSHA plans to issue a serious citation, it first sends a notice of intent, and employers have the option of responding with evidence. Now, if Cal/OSHA intends to issue a serious citation for an alleged COVID-19 hazard, it need not issue a notice of intent or consider the employer’s evidence.

It behooves employers who have an employee with COVID-19 or have an outbreak of COVID-19 in the workplace to immediately contact their legal counsel to assure they strictly comply with these new laws and guidelines. Failure to do so risks fines, penalties, legal actions as well as a business shutdown.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.

COVID-19 Supplemental Sick Leave for California Workers

September 7, 2020 By Israel Samuels LLP Leave a Comment

Assembly Bill 1867 (“AB 1867”), passed to fill gaps left by the Families First Coronavirus Response Act (“FFCRA”), was signed by the Governor on September 9, 2020. AB 1867 requires that private employers with 500 or more employees in the United States provide eligible (non-food sector) employees with up to 80 hours of supplemental paid COVID-19 sick leave (“Supplemental COVID-19 Leave”). It also codifies a food sector-specific supplemental paid leave provided under Executive Order N-51-20, and extends paid leave benefits to health care and emergency responders who were not provided with paid sick leave under the FFCRA.

For non-food or emergency sector employees, AB 1867 requires covered employers to provide eligible workers with Supplemental COVID-19 leave, beginning September 19, 2020, when they are unable to work due to any of the following reasons:

The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; and/or
The employee is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Eligible employees who are classified as “full time” or who worked or were scheduled to work, on average, at least 40 hours per week during the two weeks preceding the leave are entitled to up to 80 hours of leave. Workers who are not considered “full time” or who work fewer than 40 hours per week are entitled to leave based on one of three calculation methods.

Subject to certain conditions, Supplemental COVID-19 leave runs concurrently with similar leave provided under local COVID-19 leave ordinances and/or orders, but it is separate from, and in addition to, non-COVID-19 sick leave. Like the FFCRA paid leave, Supplemental COVID-19 leave is capped at $511 per day and/or $5,110 in the aggregate per employee.

The Bill also requires covered employers to post a notice poster in workplaces or, if employees are not at the worksite, provide it to them electronically. Covered employers must include information regarding employees’ Supplemental COVID-19 leave balances in the same manner as for non-COVID-19 paid sick leave, beginning the first full pay period after September 9, 2020.

California employers with 500 or more employees need to immediately contact their employment attorney in order to update COVID-19-related leave policies, provide notice and ensure compliant wage statements. Non-compliance will expose covered employers to the potential for penalties.

When COVID-19 Positive Employees Can Return to Work

August 17, 2020 By Israel Samuels LLP Leave a Comment

Near the end of July, the Centers for Disease Control and Prevention (CDC) updated its guidance regarding the discontinuation of home isolation for persons with COVID-19. The guidance provided:
For persons known to be infected with COVID-19 and symptomatic, isolation can now be discontinued if:

At least 10 days have passed since symptom onset;
At least 24 hours have passed since resolution of fever without the use of fever-reducing medications; and
Other symptoms have improved.

Prior CDC guidance recommended that at least 72 hours pass since the resolution of fever without the use of fever-reducing medication, and that respiratory symptoms improve before an infected person discontinue isolation.
These revisions, thus, shortened the suggested isolation period, but maintained the importance of self-monitoring for symptoms.

The CDC recommends a 10-day home isolation period for persons known to be infected with COVID-19 but asymptomatic.

The CDC no longer generally recommends a test-based strategy for discontinuing home isolation, except for the severely immunocompromised or to discontinue isolation earlier than the time-based guidelines. Previously, CDC recommended that one way to end isolation was to have two negative diagnostic tests, from samples taken at least 24 hours apart. However, numerous studies showed mildly ill people are almost never infectious 10 days after symptom onset (20 days for severely ill persons).

Under the new guidance, employers can choose to return their affected employees in accordance with the shortened isolation timeline, or they can still accept two negative COVID-19 tests. In some instances, producing two negative diagnostic tests could lead to the discontinuation of home isolation sooner than even the shortened timeline.

The new guidelines do not affect the recommended 14-day quarantine period for persons exposed to a known case of COVID-19, even if they never develop symptoms or test positive.

Now, we are heading into the sixth month since the pandemic reached the United States. As the economy re-opens it is extremely important for businesses to consult with their business and employment attorneys to assure compliance with all the new health and safety regulations for the sake of you, your employees and your and their families. Compliance with the guidance can also serve as a safe harbor for employers should an affected employee return to work and still unwittingly spread the virus.

Should You Temperature Test Your Employees?

July 20, 2020 By Israel Samuels LLP Leave a Comment

Employers are obligated by law to protect workers and prevent the spread of COVID-19 in the workplace. Should an employer temperature test its employees as a potential safeguard? It depends . . . and there are several legal considerations to take into account.

Some states require employers in certain industries to temperature test workers before the start of their shift. The EEOC has recommended the use of temperature tests, and the CDC has encouraged companies to institute regular health checks, including temperature screening, to mitigate the spread of COVID-19. However, many jurisdictions and industries do not require temperature checks, so for many employers, it is optional.

Where not required, employers should consider whether temperature screening has any value. Individuals with COVID-19 may not exhibit symptoms, and individuals with higher temperatures may not necessarily be infected. In addition, the additional cost and legal and business may not make sense for some employers.

Employers who do temperature test will need to set clear guidelines on what constitutes a “fever.” The CDC defines a fever as 100.4°F or higher, but some states, like Delaware, have ordered that, for certain industries, any temperature above 99.5°F renders an employee ineligible to work.

Some companies test in a private setting within the office, although many take temperatures as employees enter the workplace. If temperatures are taken as employees enter the workplace, employers must consider how to maintain adequate social distancing between workers, as well as confidentiality and privacy concerns.

Some states, including California, require notice to employees before temperature testing can occur. Temperature testing also raises recordkeeping and privacy issues. Employers should maintain employee health data, including temperature checks, separate from personnel files and limit disclosure to a “need-to-know” basis. If the workforce is covered by a collective bargaining agreement, the testing may be subject to a duty to bargain. Even if testing is not covered by a collective bargaining agreement employer should consult with the unions.

If workers stand in long testing lines the waiting time may be compensable under state or federal law. Employers should consider staggering shift starts or having multiple temperature takers to avoid delays.

Temperature testing can be a useful return-to-work safety measure; however, employers need to decide whether it makes sense for their business and determine how to implement it. If you are considering implementing temperature testing protocols in your workplace, please discuss it first with your business attorney.

What to Do If Your Employee Tests Positive For COVID-19

July 6, 2020 By Israel Samuels LLP Leave a Comment

A frequent question for businesses that open during the pandemic is what do we do if we have an employee who reports that they have tested positive for COVID-19? Cal-OSHA, recently issued guidance for employers on the specific topic of handling outbreaks in the workplace. That guidance can be found on Cal-OSHA’s website. Cal-OSHA advises that even a single positive case may quickly turn into an outbreak among employees. Due to the large variety of workplaces, Cal-OSHA recommends that employers contact and consult with their local health department to plan and coordinate their response.

Employers must still comply with Cal-OSHA reporting requirements and immediately report serious injuries, illnesses, or deaths in the workplace. According to Cal-OSHA this means employers should report all COVID-19 related inpatient hospitalizations and deaths even if it is uncertain that they are work-related.

Governor Newsom’s May 6, 2020 Executive Order provides, for workers’ compensation coverage purposes, that any case of COVID-19 contracted between March 19, 2020 and July 5, 2020 by an employee who works outside the home, is presumed to have occurred in the course of employment. This presumption is rebuttable (e.g. the employee lives with a non-employee who had COVID-19), but the employer does not get to decide whether or not the virus was contracted at work. The employer should give the employee a worker’s compensation form and let the insurance carrier determine coverage.

Employers should also consider:

Informing coworkers who may have come into contact with the infected employee that an employee (maintain confidentiality of the employee’s identity to the extent practicable) has tested positive.
Providing COVID-19 testing for other employees. If testing is required by the employer, the expense must be paid for by the employer, and the employees must be paid for the time they spend undergoing testing. Employees cannot be required to undergo COVID-19 antibody testing, – only testing for active infection.
Where testing is not possible, employers should consider contact tracing to identify those who have had close contact with the infected employee, and advise those close contacts to quarantine at home for 14 days from their last known contact with the infected employee. If numerous employees were in close contact with an infected employee, employers should strongly consider closing the worksite temporarily and advising all employees to quarantine. “Close contact” means spending 15 minutes or more within 6 feet of a COVID-19 positive employee during their infectious period, which includes 48 hours before they became symptomatic.
While at home, quarantined employees should monitor for any potential symptoms of COVID-19 (fever, shortness of breath, cough, loss of taste/smell, congestion/runny nose, sore throat, fatigue, chills, nausea/vomiting, diarrhea) and should be encouraged to get a COVID-19 test if they develop symptoms.
The work area used by the infected employee(s) must be cleaned and disinfected (and such cleaning and disinfecting of the workplace should be done regularly).
Employees who are still reporting to work should not share equipment (particularly equipment that comes into contact with the face or mouth, such as telephones and headsets), and employees must be reminded to follow safety protocols established by the CDF and local guidance (including wearing face coverings and social distancing. Employees should frequently be reminded not to report to work with symptoms.
Employers must also follow current guidance on when it is safe to allow an employee who has tested positive for COVID-19 to return to work. The answer varies depending on whether the employee has symptoms or is asymptomatic. The answer also varies depending on whether COVID-19 testing is available and utilized. According to the CDC guidance, if an employee tests positive and has symptoms, the employee may return to the workplace either: (1) 72 hours after the employee is fever-free (without the use of fever-reducing medicine), AND respiratory symptoms (cough, shortness of breath) have improved, AND at least 10 days have passed since symptoms first appeared; OR (2) after the employee has tested negative for COVID-19 two consecutive times, at least 24 hours apart, and employee is fever-free (without use of fever reducing medicine) and any respiratory symptoms have improved.

If an employee tests positive but is asymptomatic, the employee may return to the workplace (1) after at least 10 days have passed since they tested positive if they still have not developed any symptoms; or (2) after the employee has two consecutive negative COVID-19 tests, at least 24 hours apart. Cal-OSHA advises that employers defer to their local health department on specific return to work criteria.

Any time an employee cannot work due to COVID-19 (testing positive, being ill with symptoms, or being quarantined due to close contact with an infected individual), the employer needs to be sure the employee is informed of paid time off rights and provided with applicable paid time off. This may include paid sick leave under the federal Families First Coronavirus Response Act (FFCRA) and/or state and local paid sick leave laws. The cities of San Francisco, Oakland, San Jose, Los Angeles, and Long Beach all have COVID-19 sick leave ordinances that supplement pre-existing paid sick leave and/or apply to employers who are not covered by the FFCRA. FFCRA provides up to 80 hours of paid sick leave to employees who work for private sector employers with less than 500 employees (or who work for a public employer).

If you are an employer with 50 or more employees and you have an employee who becomes seriously ill with COVID-19 (e.g. the employee is hospitalized), keep in mind that this could also trigger a lengthier entitlement to up to twelve weeks of unpaid leave under the FMLA/CFRA.

The workplace issues presented by the pandemic are formidable and change frequently. We recommend that you consult your business attorney about compliance before you re-open and any time an employee contracts, or is exposed to, the virus.

Families First Coronavirus Response Act

March 23, 2020 By Israel Samuels LLP Leave a Comment

Every day we are facing new challenges with the outbreak of COVID-19 and complying with the stay-at-home orders in operating our business, as well as continuing with our daily routines. We will continue to provide updates on new laws and orders and recommend that we all stay as informed and updated as possible during these unprecedented times.

The U.S. Senate recently passed the Families First Coronavirus Response Act that was passed by the House earlier this week. President Trump is expected to sign the bill into law forthwith. Here are the important aspects for employers:

Paid Sick Leave
Under the new law, employers with fewer than 500 employees (yes, this is a strange limitation) must provide employees with two weeks (10 days) of emergency paid sick leave benefits to be used for Coronavirus-related absences. For full-time employees, this means 80 hours of paid sick leave. For part-time employees, this means the number of hours the employee works on average over a two-week period. There is no minimum tenure of employment in order for an employee to be eligible for
this paid sick leave benefit. The full benefits must be available for immediate use and do not accrue over time based on hours worked. Importantly, an employer cannot require employees to exhaust other forms of paid leave before using this new Coronavirus paid leave. Additionally, the Coronavirus paid leave is in addition to any paid leave the employer already provides. It does not appear that an employer with an existing paid sick leave policy (e.g. in California) is excused in whole or in part from compliance with the new law. The law is only in place until December 31, 2020.

An employee may use paid sick leave if the employee is unable to work for any of the following reasons:

The employee is subject to a federal, state, or local quarantine or isolation order for Coronavirus;
The employee is advised by a health care provider to self-quarantine due to Coronavirus concerns;
The employee is experiencing symptoms of Coronavirus and seeking a medical diagnosis;
The employee is caring for an individual who is under a quarantine or isolation order or has been advised to self-quarantine;
The employee is caring for a child who’s school or child care has been closed due to Coronavirus;
The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Employees using paid sick leave for purposes (1)-(3) above must be paid their “regular rate of pay” (as defined for purposes of calculating overtime compensation), which cannot be less than the minimum wage in the state or locality where the employee works. Employees using leave for reasons (4)-(6) must be paid 2/3 of these amounts. However, an employer’s obligation to provide paid sick leave is subject to the following “caps:” (A) An employee using paid sick leave for reasons (1)-(3) above need not be paid more than $511 per day and/or $5,110 in the aggregate; and (B) An employee using paid sick leave for reasons (4)-(6) above need not be paid more than $200 per day and/or $2,000 in the aggregate. If an employee does not
have a set schedule of hours, paid sick leave is based on the average number of hours the employee was scheduled per day over the six-month period prior to the use of the leave. For what it is worth, the Secretary of Labor is supposed to issue
guidelines on calculating paid sick leave pay within 15 days.

The employee’s ability to use paid sick leave for these purposes cease upon the termination of the qualifying event. Paid leave provided under this law does not carry over year to year and any unused leave does not need to be paid out on termination of employment.

The Secretary of Labor can issue regulations to exempt health care providers, emergency responders, and employers with fewer than 50 employees from this paid sick leave law. There is no built-in exemption, however.

Employers are required to post a notice in the workplace of paid sick leave rights under the new law. The Secretary of Labor is supposed to publish this notice for employers to use within 7 days.

Failure to comply with the paid sick leave law will be deemed a failure to pay minimum wages under the FLSA, and subject an employer to various penalties.

Expanded Family and Medical Leave
The new law also includes a temporary expansion of the Family and Medical Leave Act (“FMLA”) through December 31, 2020, to allow FMLA leave (up to 12 weeks) to be used for a qualifying need related to a public health emergency concerning Coronavirus, as declared by federal, state, or local authorities. A “qualifying need” is limited to circumstances where the employee is unable to work or telework due to the need to care for a child under 18 if the child’s school or childcare is closed due to a Coronavirus-related public health emergency. Employees are eligible for the leave if they have worked for the employer for at least 30 calendar days. (This is a much broader than the usual eligibility rules for existing forms of
FMLA leave.)

Importantly, the expanded FMLA leave entitlement only applies to employers with fewer than 500 employees. The Secretary of Labor has authority to issue regulations to exempt small business with less than 50 employees, but they are not yet exempt.

The rules for when this Coronavirus related FMLA leave is paid versus unpaid differ greatly from existing forms of FMLA leaves, all of which are unpaid. If an employee takes leave to care for a child due to a Coronavirus-related school closure, the first 10 days of the leave may be unpaid. The employee may elect (but may not be required) to use accrued vacation or sick leave during this time. After this first 10 days, the employer must provide PAID leave of no less than two-thirds of the employee’s regular rate of pay (as that term is defined by the FLSA for purposes of calculating overtime compensation), not to exceed $200 per day and $10,000 aggregate.

An employee who uses this FMLA leave is entitled to reinstatement to the same or equivalent position UNLESS the employer has fewer than 25 employees, the position held by the employee at the time the leave started no longer exists due to economic conditions or other operating condition caused by the public health emergency, and the employer has tried to restore the employee to an equivalent position. If there is no position available, the employer still must make reasonable effort for one year to contact the employee if an equivalent position becomes available.

Employers of health care providers and emergency responders may elect to exclude such employees from the provisions of this law. The expanded FMLA law takes effect “no later than” 15 days from the date of its enactment.

Payroll Tax Credits for Employers Providing the Paid Leave
The new law provides payroll tax credits for employers who provide paid sick leave or paid family leave to employees for Coronavirus purposes set forth in the law. Specifically, an employer is entitled to a payroll tax credit for each calendar
quarter in an amount equal to 100% of the qualified paid sick leave wages paid by the employer in the quarter, and the amount of qualified family leave wages paid by the employer, not to exceed $200 per day and $10,000 aggregate per employee.

The California Labor Commissioner’s Office has released FAQs on Laws Enforced by the Labor Commissioner [https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm] and COVID-19, addressing sick leave and reporting time pay.

Legal Developments regarding COVID-19 that may affect your business

March 16, 2020 By Israel Samuels LLP Leave a Comment

The State of California is now under a shelter-in-place order (the “Order”) to help slow the spread of the Coronavirus (COVID-19). Here are some guidelines to help business owners understand the Order so that business can continue operating as best it can.

Please be advised that per the California Health and Safety Code, “Violation of or failure to comply with this Order is a misdemeanor punishable by fine, imprisonment, or both.”

The Order states that all businesses with a facility in the State, except “Essential Businesses” are required to cease all activities at facilities located within the State except “Minimum Basic Operations”.

For clarity, businesses may also continue operations consisting exclusively of employees or contractors performing activities at their own residences (i.e., working from home). All Essential Businesses are strongly encouraged to remain open. To the greatest extent feasible, essential businesses shall comply with Social Distancing Requirements, including, but not limited to, when any customers are standing in line.

Many firms are closing and having employees work remotely from home. For businesses that cannot easily conduct all of their operations remotely, it is important to quickly verify if your business fits into the definition of an “Essential Business”.

One way to qualify as an “Essential Business” is if your business provides products or services to one or more Essential Businesses. An “Essential Business” still is under new duties in the order (such as social distancing) but employees do not have to stop working or work remotely.

A common-sense source of information on the Coronavirus and how it affects businesses like yours is the California Chamber of Commerce: https://advocacy.calchamber.com/coronavirus-covid-19/.

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this challenging time.