CalChamber Answers Employers' COVID-19-Related FAQs

April 09, 2020 | From HRCalifornia Extra

Compiled by Katie Culliton, Editor, CalChamber

With the rapidly implemented federal laws, multiple executive orders, new county and city ordinances, and updated state guidance, employers may be uncertain about how to respond to certain business circumstances during this pandemic caused by COVID-19, commonly known as the coronavirus — and they’re asking CalChamber for guidance.

Over the last few weeks, CalChamber’s Labor Law Helpline has received an unprecedented amount of calls from members asking many COVID-19-related questions. Here are those most frequently asked by employers like you, and CalChamber’s answers.

During the COVID-19-related “shelter in place” orders, is my business an “essential business”?

The list of the types of businesses deemed “essential” is lengthy, technical and varies depending on the statewide order or each county’s order.

Businesses should refer to the California Governor Gavin Newsom’s state order to determine if their business is deemed essential. Employers who can’t figure out if they’re explicitly essential should contact their legal counsel to help work through the process.

Read more about What Is and Isn’t ‘Essential’ Business Under California’s ‘Stay at Home’ Order on HRWatchdog.

What is the difference between furloughing and laying off employees?

Essentially, a furloughed employee remains an employee but with reduced or eliminated work hours, while a layoff generally means a complete employment separation due to the job being eliminated.

However, under the current circumstances involving COVID-19, the California Labor Commissioner may not see a real difference between a temporarily furloughed employee without any work hours and a laid-off employee.

In a pair of opinion letters (Opinion Letter 1993.05.04 and Opinion Letter 1996-05-30), the Labor Commissioner stated that if an employer reduces an employee’s scheduled work hours to zero — and doesn’t reschedule that employee within the same pay period — the employer has effectively laid off the employee, which triggers the final pay requirements under Labor Code section 201.

Read more about Furloughs Versus Layoffs: Is There a Difference in California? on HRWatchdog.

If we close our company due to COVID-19, how do we give our employees their final pay?

Employers still must meet final pay requirements and are subject to waiting time penalties. These requirements may be especially difficult to meet if a company’s workforce is currently working remotely.

Currently, by law, employers must provide the final paycheck at the time and location that a severance occurs. Due to social distancing, employers can’t really do these layoffs in person. Once the employee has their employment severed, they must be paid their final pay, including owed vacation and paid time off, to the best of the employer’s ability.

For example, employers may choose to add the appropriate waiting time penalties to the final paycheck — which is one day of wages for every day the final paycheck is late, up to 30 days — and then mail the check with overnight delivery to the employee.  

The Labor Commissioner is currently looking at this issue and further guidance is expected.

Can an employer take an employee’s temperature before they start work?

Generally, no, an employer cannot take an employee’s temperature as it is considered a medical exam.

However, due to the COVID-19 pandemic, effective March 2020, the Equal Employment Opportunity Commission and California Department of Fair Employment and Housing (DFEH) are permitting employers to take employees’ temperatures if specifically related to COVID-19. Employers should carefully consider hygiene and social distancing precautions for any temperature-taking program.   

Employers should also bear in mind that taking an employee’s temperature is subject to American with Disabilities Act confidentiality requirements.

Read more in DFEH Employment Information on COVID-19.

Are we required to notify our employees if we learn an employee tested positive for COVID-19?

If an employee tests positive for COVID-19, employers should immediately contact their county health officials and the California Department of Public Health. These agencies will direct employers on what steps they need to take.

Employers should be mindful of employees’ privacy, and not divulge names. Employers can alert employees with a general statement that an employee has tested positive for COVID-19, and other employees may have been exposed.

Read more in DFEH Employment Information on COVID-19.

As an “essential” business, can we require our employees wear protective gear, such as masks, when they report to the workplace?

Employers can require employees to wear personal protective equipment but should make reasonable accommodations where appropriate.

For example, if an individual is in a wheelchair and is required to wear a gown, the employer should find a gown that will fit, and if an employee has a latex allergy, the employer should provide nonlatex gloves.

Read more in DFEH Employment Information on COVID-19.

What laws must we follow if we have more than 100 employees and, due to COVID-19, we must lay off 20 percent of our workforce?

On March 17, 2020, the governor issued an executive order suspending the 60-day notice requirement under the California Worker Adjustment and Retraining Notification Act (WARN Act). Employers must still provide written notice as soon as practicable with a statement of why the notification period was reduced and include information for obtaining unemployment insurance benefits. This notice-requirement suspension is limited to business circumstances related to COVID-19.

The California WARN Act applies to employers with 75 or more full-time employees who have been employed for at least six months of the previous 12 months. 

The California Employment Development Department has released COVID-19: WARN FAQs for employers.

Read more about the Temporary Exception to WARN Act for COVID-19 in the HR Library.

Do we have to pay employees who have children no longer in school (due to school closures) and who are not working?

Employers have several options to consider.

In California, employers with 25 or more employees working at the same location must permit employees to take time off for certain child-related activities, including to address a child-care provider or school emergency. Such an emergency includes closure or unexpected unavailability of the school or child-care provider.

Employees may take up to 40 hours each year for school activities. The leave is usually limited to eight hours per month, but employees may be able to use all 40 hours for the current school closures.

Employers can require the employee to use existing vacation, PTO or other personal leave, while on school activities/emergency leave, unless prohibited by a collective bargaining agreement. Depending on the employer’s policies, the employee may also take the leave unpaid. According to the California Labor Commissioner, a parent may also choose to use paid sick leave.

Another option is the Families First Coronavirus Response Act (FFCRA), which went into effect on April 1 and expands employee benefits and protections related to COVID-19, including a new federal paid sick leave law and an emergency expansion of the Family and Medical Leave Act.

Finally, if possible, employers may offer remote work options. The FFCRA provisions related to school closures are only applicable to employees who cannot work remotely. 

Read more about school activities leave and remote working on Options for Employers, Employees During School Closures on HRWatchdog.

How do we pay exempt and nonexempt employees who are working remotely?

Pay obligations don’t change simply because an employee (exempt or nonexempt) is working remotely.

If an exempt employee does any work in a week, the employee must be paid. If, however, the exempt employee doesn’t do any work in the week, the employee’s weekly salary may be reduced.

For nonexempt, hourly employees, all hours worked must be paid. Employers should accurately track any time worked and pay for overtime, if it occurs. Employers also should ensure that nonexempt employees take uninterrupted, off-duty meal and rest breaks — especially since employees may forget to take their breaks in a home setting. For example, employers might suggest employees set an alarm to remind them to take their breaks.

Establishing a remote work/telecommuting policy is a great way to communicate your expectations to your remote employees, particularly when it comes to keeping an accurate record of their hours worked, including overtime, as well as taking their meal and rest breaks.

For the most up-to-date information on how COVID-19 is impacting employers, visit the CalChamber COVID-19 resource page.