2.28.20 “This page will be updated regularly as new questions come in. It will be a good idea to bookmark and check again daily.”
…Scroll down for updates… Plus HR 6201 Act info link and required postings…
By Jennifer Jacobus, PHRca, SHRM-CP SDEA Director of HR Services and Molly Wood SPHR SDEA HR Consultant.
Work in the Age of Coronavirus
Anyone who has paid attention to current media has heard of the Coronavirus, and employers and HR professionals are concerned about the potential impact that it could have on their staff, and ultimately their business.
So, what does all this mean in the workplace as far as compensation for your exempt and non-exempt employees?
Considerations to determine in advance, for Coronavirus, and also seasonal influenza, include paid time off policies, unpaid time off policies, attendance policies, applicable job protected leave, and payment of exempt employees.
Common questions SDEA is getting include:
How do we pay an exempt employee if we need to send them home?
Paying Exempt Employees
Exempt employees generally must be paid their regular weekly rate regardless of the number of hours worked during the week. Employers may require exempt employees to use paid sick leave/vacation/PTO balances, and may deduct pay for full day absences if they have a bona fide sick leave plan and all paid time off balances have been exhausted. Exempt employee pay may not be deducted if the employer requires the employee to stay home or if business is otherwise closed.
What if an exempt employee voluntarily chooses to stay home, even if not sick?
If the business is open, but the employee is unable ( or chooses not) to go to work, then the employer is able to make deductions from the exempt employee’s salary in full day increments; partial day deductions from an exempt employee’s salary is never permissible. These deductions would, of course, come only after the exempt employee has exhausted any available paid time off.
How do we pay a non-exempt employee if we need to send them home?
Non-exempt employees are required to be paid for all hours worked. If business is closed or a non-exempt employee is otherwise unable to come to work, an employer is not required to pay. Employers would apply any available paid sick leave to the employee’s absences as well as PTO or vacation according to company policy. Otherwise the time off would be without pay; partial day deductions are permissible for your non-exempt employees.
Can we send an employee home if they show up to work sick?
Common employer concerns include employees who show up to work sick (doesn’t have to be something as serious as the Coronavirus) and if the employer can send the employee home. The answer is generally “yes”; however, we recommend a policy (or even a memo due to the current situation) letting employees know that this will be a possibility. Remember that if a non-exempt employee reports to work and they are sent home having had worked less than half of their scheduled shift, you may owe the employee reporting time pay. Reporting time pay is half of the employee’s scheduled shift, minimum two hours, maximum four hours. An exempt employee who reports to work and is sent home must be compensated for the full day, but applicable hours can be taken from PTO balances
Exceptions to reporting time pay are:
• Threats to employees or to the facility
• When civil authorities recommend that work not continue or begin
• When public utilities fail
• An Act of God including natural disaster, flooding, fire, earthquakes
• When the employee voluntarily leaves work
If an employer voluntarily chooses to close or closes because business is slow and there is no work, even if this is due to a virus outbreak, reporting time would apply. Only if authorities have ordered businesses to close would reporting time pay not apply.
What if we decide to allow (or if we require) employees (both exempt and non-exempt) to work remotely?
The CDC came out earlier this week and asked employers and schools to be prepared to work/teach remotely (in a worst-case scenario). Nothing changes with regards to compensation. As stated above, non-exempt employees get paid for all hours worked; exempt employees would need to be paid for a full day, even if they only work a partial day from home.
Employers who are working with remote employees are encouraged to develop a clear policy on telecommuting; including expectations, means for reporting time and expected performance guidelines. Employers should also be prepared to incur costs associated with telecommuting that may include an employee’s personal internet usage, cell phone usage and other supplies.
What else do we need to think about if the Coronavirus hits our workplace?
Employers may want to consider providing more flexibility in regard to sick time. Since flu symptoms would typically take up all five days of San Diego mandated Paid Sick Leave, employers will want to have a fair and consistent policy in place if an employee is out with the flu in the winter, but then gets a cold a few months later. It’s never good to create a situation where sick people feel like they have to come in to work.
If employees are out for an extended period of time, they may be entitled to job protected leave under FMLA, CFRA, and/or ADA. Employers will want to be consistent when determining how much sick time will initiate a leave of absence.
If employers are faced with the unfortunate choice of having to lay employee’s off or furlough their employees, be prepared to comply with California laws associated with final pay and take advantage of the resources offered by the Employment Development Department associated with unemployment benefits, furloughs and possible workshare programs.
Of course, prevention is the best medicine. Educating your workforce on how to avoid contracting and spreading contagious diseases (e.g. regular hand washing, covering mouth and nose with tissue when sneezing or coughing, staying home when they are sick), stocking tissues and hand sanitizer in the workplace, and providing adequate paid leave so employees are not faced with excessive financial hardship when sick, are great ways to keep your staff healthy and happy.
Can we require our employee’s to obtain a doctor’s note prior to returning to work if they call out sick?
While we understand the health and welfare of your employees and customers is critical right now, you still need to be practical. If you have an employee for instance, that is calling out because they have a migraine or they have bad allergies, requiring them to go to their doctor in order to return with a release, might be a bit unfair. While you are restricted from asking too many health-related questions from your employees due to HIPAA and privacy issues, you can ask if they are contagious, if the have a fever. You can require that if they do have a fever that they not return to work until they are “fever-free”, without the help of medications, for at least 24 hours. In the case where the employee does share that they have the flu, flu-like symptoms, that they do have something that is contagious, then yes, you can require them to bring in a release to return to work.
Can we require an employee to use PTO if they have to stay home with a sick family member or, in the case that a child’s school closes?
Black and white answer is yes. However, we are encouraging employers to allow some flexibility in their time off policies at this time. There may be employees who are required to stay home due to circumstances that are completely out of their control, times when they are not the one who is sick. While you are not required to pay your non-exempt employees for any time that they do not work, employers are encouraged, in this case, to allow the employee the option to use their accrued time off as opposed to making it a requirement.
When can employees apply for State Disability Insurance, Paid Family Leave, or Unemployment Insurance?
(update: 3.12.20) The seven day waiting period for disability and unemployment insurance has been waived.
State Disability Insurance (SDI)
If an employee is out of work for their own illness, they can apply for SDI. (update: 3.12.20) The seven day waiting period for disability and unemployment insurance has been waived. Employers will want to document the appropriate leave depending on company size. For companies with 50 or more employees, this would be an FMLA/CFRA job protected leave (if the employee meets the qualifications). For California employers with five or more employees under the FEHA (State) disability regulations, and employers with 15 or more employees under the ADA (Federal), leave may be required as a reasonable accommodation.
Paid Family Leave (PFL)
Employees who need to take time off to care for a sick family member can apply for PFL. PFL is not a job protected leave in and of itself, but FMLA/CFRA may apply. PFL requires medical certification, and there is no waiting period for PFL. If the leave is not covered under FMLA/CFRA, the leave can be documented as discretionary.
Unemployment Insurance (UI)
If an employee is out of work because the company is shut down, or there is no work available, they can apply for UI. The employee does not need to be terminated, and employees can apply for UI due to reduced hours as well as total lack of work. If employees are not given a definite return to work date, accrued vacation/PTO paid to the employee (lump sum) when they are furloughed/laid-off is not deducted from their weekly benefit amount. If employees are given a definitive return to work date, or if they use their vacation/PTO incrementally, it will be deducted from their benefit amount. (update: 3.12.20) The seven day waiting period for disability and unemployment insurance has been waived.
Do you have any sample language that I can provide to my employees to notify them of a layoff or reduced hours?
Yes, please see the attached but remember that these are samples only and you should be sure to address benefits and circumstances that are specific to your company.
Our Company policy requires that an employee work a minimum of 30 hours a week in order to be eligible for health benefits. If I am forced to reduce an employee’s hours, am I still able to continue their health benefits?
If the reduction in hours is categorized as temporary, the employer can waive the number of hours requirement. They don’t need to contact their broker and they shouldn’t contact their carrier.
The Insurance Commissioner has requested insurance companies to extend the premium due date from 30 days to 60 days, and there is discussion of allowing employees who are rehired to waive the waiting period for benefits eligibility when they are hired back.
I heard with the new Bill, H.R. 6201, we are required to post information for our employees. How do we do this for our workforce that is working remotely?
This is correct. The Families First Coronavirus Response Act requires that employers notify their employees of their rights and the DOL has provided the following poster that must be posted by all employers employing 500 or less employees. Remember that this is for current employees only and not retroactive. Employers may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.
If you have questions about your staff being out sick, or requiring employees to stay away from work, give us a call. 858-505-0024