UPDATED APRIL 2, 2020
State and local administrative agencies have released guidance to employers regarding wage and hour issues, paid sick leave, disability and unemployment insurance for situations involving the Coronavirus (COVID-19) outbreak.
Department of Industrial Relations – Office of the Labor Commissioner
The California Department of Industrial Relations (DIR) has released an FAQ on laws enforced by the Labor Commissioner’s Office, providing guidance to employers as it relates to sick leave and COVID-19 illness. The following provides a summary of the DIR’s guidance:
Does Preventative Care Include Self-Quarantine due to COVID-19?
Preventive care under paid sick leave would include self-quarantine as a result of potential exposure to COVID-19 if recommended by authorities or if the employee has traveled to a high-risk area.
Can Employers Require Employees to Use Paid Sick Leave for Quarantine Purposes?
Employers cannot require employees to use paid sick leave for quarantine purposes. However, if the employee elects to use paid sick leave, an employer can require an employee take a minimum of 2 hours of paid leave per day. If an employer exhausts sick leave, or does not qualify to use paid sick leave, other types of leave may be available pursuant to an employer’s paid time off policies.
Can Employers Require Employees to Provide Information about Travel?Employers may request that employees disclose travel plans, or whether they have traveled, to countries designated by the Center of Disease Control and Prevention as high-risk in light of the COVID-19 outbreak.
What are Compensation Considerations During COVID-19?
Non-exempt employees who are reporting to work but are required to work fewer hours, or who report to work and are sent home, must be compensated for at least two hours (or no more than four hours) of reporting time pay. An exception to this rule would be made if operations cannot continue as recommended by civil authorities.
If an exempt employee works any portion of a day, there can be no deduction from salary for a partial day absence for personal or medical reasons. Federal regulations allow partial day deductions from an employee’s sick leave bank so that the employee is paid for their sick time by using their accrued sick leave. If an exempt employee has not yet accrued any sick leave or has exhausted all of their sick leave balance, there can be no salary deduction for a partial day absence.
Employment Development Department
California’s Employment Development Department (EDD) has provided guidance on Disability Insurance, Paid Family Leave, and Unemployment Insurance for those affected by COVID-19. The following provides a summary of the EDD’s guidance:
Can Employees File a Disability Insurance Claim due to the COVID-19?
Employees that are unable to work because they have been exposed or diagnosed can file a Disability Insurance claim, and may be eligible to receive short-term benefit payments of approximately 60-70 percent of wages of up to $1,300 a week (depending on income).
Can Employees File a Paid Family Leave Claim due to COVID-19?
Employees that are unable to work because they are caring for an ill or quarantined family member may file a Paid Family Leave (PFL) claim, and may be eligible for up to six weeks of benefit payments of up to $1,300 a week (depending on income).
Can Employees File an Unemployment Insurance Claim due to COVID-19?
Employees that experience a reduction of hours or whose employer shuts down operations due to COVID-19 can file an Unemployment Insurance Claim and may be eligible for partial wage replacement benefits up to $450 per week.
On March 27, 2020, Congress passed a stimulus package that aims to aid workers and businesses impacted by the economic hardship caused by the coronavirus (COVID-19) pandemic. The bill, entitled the “Coronavirus Aid, Relief, and Economic Security Act” or the “CARES” Act, allocates approximately $2 trillion to a variety of loans, grants, and aid programs and makes changes to existing laws. Notably, the CARES Act provides for expanded unemployment benefits by extending state unemployment insurance benefits to 39 weeks and provides an additional $600 per week until July 31st. EDD has indicated that they are reviewing the CARES Act and are working on programming needed to implement the new provisions for the unemployed but, like all other states, are currently awaiting further guidance from the U.S. Department of Labor to complete that programming.
For more information about the CARES Act, please see our blog post.
Can Employers Apply for the Work Sharing Program due to COVID-19?
Employers can apply for the Unemployment Insurance Work Sharing Program if, as a result of COVID-19’s impact on the economy, reduced production, services, or other conditions cause them to seek an alternative to layoffs.
Department of Fair Employment and Housing
The California Department of Fair Employment and Housing (DFEH), the agency charged with enforcement of California’s Fair Employment and Housing Act (FEHA), which, among other things, prohibits discrimination, harassment, and retaliation in the workplace released its own guidance in response to COVID-19. The following provides a few key considerations from DFEH guidance:
Can an Employer Send Employees Home if they Display COVID-19 Symptoms?
Employers may ask employees that exhibit COVID-19 symptoms to go home and must provide paid sick leave and compensate the employee under paid sick leave laws. If sick leave is exhausted, employees may be entitled to other paid leave (including vacation or paid time off), or job-protected unpaid leave.
How Much Information May an Employer Request from Employees Reporting Sick at Work During a Pandemic?
Employers may ask if employees are experiencing COVID-19 symptoms, such as fever, chills, cough, or sore throat and must maintain all information about employee illness as a confidential medical record.
Are Employees Entitled to Job-Protected Unpaid Leave Under the California Family Rights Act due to COVID-19?
Eligible employees may be entitled to up to 12 weeks of job-protected leave under the California Family Rights Act (CFRA) for their own serious health condition, or to care for a spouse, parent, or dependent child with a serious health condition. COVID-19 will qualify as a serious health condition if it results in inpatient care or continuing supervision by a health care provider.
Please refer to the DFEH Employment Information on COVID-19 FAQ for additional guidance.
San Francisco Office of Labor Standards Enforcement
The San Francisco Office of Labor Standards Enforcement (OLSE) has issued guidance on the use of paid sick leave that may arise due to COVID-19 under the San Francisco Paid Sick Leave Ordinance (PSLO). San Francisco PSLO requires employers to provide paid sick leave to all employees (including temporary and part-time employees) who perform work in San Francisco. Employees may use paid sick leave when they or a family member are ill, injured, or for the purpose of receiving medical care (including preventive care), treatment, diagnosis, or other medical reasons. The following provides a summary of the OLSE’s guidance:
Eligibility for Paid Sick Leave:
- San Francisco paid sick leave is available to employees. Workers that have been laid off by their employer are no longer eligible for paid sick leave.
- Employees who have their hours reduced or eliminated are not entitled to use accrued paid sick leave to account for such reductions or eliminations. Employees who remain scheduled to work may continue to use their accrued paid sick leave for any qualifying reason for any portion of their scheduled hours they are unable to work.
When Must Covered Employers Allow Employees to Use Accrued Sick Leave due to COVID-19?
Employers covered by the San Francisco PSLO must allow employees to use accrued sick leave if an employee takes time off work for the following reasons:
- Isolation or quarantine, or to care for a family member who is subject to isolation or quarantine, as recommended by a health official or healthcare provider;
- The employee falls within the definition of a “vulnerable population” under the San Francisco Department of Public Health’s (DPH) March 6, 2020 guidelines or under any subsequent updates;
- The employee’s business or a work location temporarily ceases operations in response to a public health or other public official’s recommendation – subject to the “Eligibility for Paid Sick Leave” guidelines above;
- The employee needs to provide care for a family member whose school, childcare provider, senior care provider, or work temporarily ceases operations in response to a public health or other public official’s recommendation.
Can an Employer Require Documentation from a Doctor?
Employers may not require a doctor’s note or other documentation for the use of paid sick leave taken pursuant to the San Francisco PSLO during the duration of the Local Health Emergency regarding COVID-19.
What Happens to Accrued Unused Sick Leave at Employee Separation?
PSLO is a requirement that San Francisco employers must provide to their employees. Employees are covered by the law unless there has been a separation of employment (e.g., termination, layoff, resignation, or retirement).
- Employers are not required to pay employees for accrued unused paid sick leave upon the employee’s separation from employment. However, if an employer is using a paid time off or vacation policy to comply with the Ordinance, California law requires the payout of PTO or vacation upon separation of an employee.
- If there is a separation from employment, and an employee is later rehired by the employer within one year, previously accrued and unused paid sick leave must be reinstated, and the employee is entitled to use the previously accrued and unused paid sick leave and to accrue additional paid sick leave upon rehiring
Additional Resources
DIR – FAQs on Laws Enforced by the Labor Commissioner
EDD – Coronavirus 2019 (COVID-19)
OLSE Guidance – PSLO & Coronavirus (March 9, 2020)
OLSE Guidance – PSLO & Coronavirus (March 24, 2020)
San Francisco Paid Sick Leave Ordinance
The information and materials on this blog are provided for informational purposes only and are not intended to constitute legal or tax advice. Information provided in this blog may not reflect the most current legal developments and may vary by jurisdiction. The content on this blog is for general informational purposes only and does not apply to any particular facts or circumstances. The use of this blog does not in any way establish an attorney-client relationship, nor should any such relationship be implied, and the contents do not constitute legal or tax advice. If you require legal or tax advice, please consult with a licensed attorney or tax professional in your jurisdiction. The contributing authors expressly disclaim all liability to any persons or entities with respect to any action or inaction based on the contents of this blog.
