COVID-19 Webinar: Your Questions Answered

By April 3rd, 2020 HR Blog

On March 18th we hosted a free live interactive webinar with our attorney Chris Olmsted, and our HR consultants Jen & Molly. They spoke about the latest developments and also answer your questions live. We left the system open for anyone to submit their questions and Jen & Molly compiled all the information for you.

MISCELLANEOUS

Would extended leave cover stay at home required by work?

If employees are working from home, a leave of absence would not be applicable.  If they have reduced hours or workdays, unemployment benefits may be available.

The IRS provides for disaster leave donation programs.  Does CA have any requirements for this type of plan?

The IRS regulations would be the default on this.

Silly question what is our protection if staff are demanding deep cleaning or they will not come in to the office? No one in our office was positive for COVID-19, 4 people were exposed in other environments not work.

The state is encouraging employers to be flexible (if possible) with those employees who refuse to come to work or who are scared to come to work.  There is no requirement that the employer pay the employee and they may or may not be eligible for UI benefits.  All employers should be prudent with the cleaning of surfaces.  If employees are exposed to someone who has tested positive, those employees should self quarantine for 14 days.

What is the definition of an exempt employee?

An exempt employee (often referred to as salary) is someone who is paid a minimum salary equal to two times the state minimum wage based on the number of employees in the company and they meet a duties test.  An exempt employee is exempt from most of the state’s wage and hour requirements such as overtime, meal and rest breaks and reporting time.

BENEFITS

One of my employees just filled up forms to get healthcare. This person joined The business a year ago and has been lagging on getting me paperwork to set up health insurance and now because of all the issues wants immediately. I have a bad feeling that we’re going to have to lay off a lot of the employees including her. This is a retail non-essential 13 employee store. What do I tell her? or, Do I go along with somebody in the paperwork to get her health insurance just to have to renege on it possibly shortly.

If the employee is otherwise eligible for health benefits, submit the paperwork as usual.  Your broker will work with you and her to determine eligibilty and COBRA if and when applicable.

For furloughs for full time hourly employees are they still eligible for benefits, healthcare, 401k, profit sharing?

With Furloughs do we need to still maintain benefits – health and retirement?

Same type of question regarding hour reduction- if temporarily reducing hours, but ee’s aren’t making the money they need, what is the expectation for paying benefits?

We have govt jobs shutting down/preventing our employees from working those construction jobs. These employees have Med/Dent. insurance – how do we handle continuing their coverage if we can’t deduct premiums & they’re not meeting the hours required since they’re not working but we’re not laying them off?

Employees may lose their benefits with a reduction of hours either in part or in whole.  There is no requirement, unless otherwise addressed in your individual company benefits, that requires an employer to continue benefits.  Employers should make sure to comply with COBRA notifications and check with your 401(k) administrators.  

CREDIT

If we choose to shut down for 2 weeks and use the 80 hours of sick leave provided by the bill are we able to get reimbursed for the extra 80 hours we are paying our employees?

Yes, the Bill provides for employer reimbursement through payroll taxes.

EMERGENCY PAID SICK LEAVE – EPSL

If mandated extension to 80 hours paid sick should we give them sick days first them have them use PTO? Is that only if they potentially have the virus or if hours are cut?

You cannot require an employee to first use their PTO, vacation or the company paid sick leave prior to using the 80 hours provided by the Bill.

Would those 65+ who choose or have been requested to stay home be eligible to apply for UI?

Possibly.  The EDD website specifically says that employees who self quarantine, “may” be eligible.

Does the 80 hours sick leave apply to under 50 employees?

It applies to all employers with 500 or less employees.

Does FLMA have to be considered if the employee does not have a confirmed case of COVID -19?

In short, the EFMLA is for employees who have been diagnosed, have been quarantined by a medical professional, who are caring for someone who has been diagnosed or for employees whose minor children do not have school or daycare.

If staff have sick leave available do they take that first before using government guidelines?

You cannot require an employee to first use their PTO, vacation or the company paid sick leave prior to using the 80 hours provided by the Bill.

If an employee has already exhausted their sick/vacation accruals is an employer obligated to pay sick/vacation that has not yet been earned by the employee?  The mandated 14 day or 2 weeks of sick pay is this above what an employee may have accured on an employers books?

The employee would be eligible for an additional 80 hours (for full-time employees) on top of what the employer provides, whether they have already used that time or not.  Employers cannot require that the employee use the employer-provided paid time off first.

Under the 80 hours of sick pay, if you offer 80 hours of PTO, does that suffice? Also is the sick pay “use it or lose it” or does it reset to zero on 1/1/xx?

The employee would be eligible for an additional 80 hours (for full-time employees) on top of what the employer provides, whether they have already used that time or not.  Employers cannot require that the employee use the employer-provided paid time off.  This additional time off is only available until the end of the year.

I may be getting ahead of myself, but:  if sick leave lands at 80 hours and an employee already expended 40 due to an illness earlier in the year, does that employee only have another 40 hours coming?

No. They have an additional 80 hours under the EPSL.

If an active EE wants to file for the new Federal extended sick pay/Family medical leave benefits, and during that time, the business closes due to government imposed restrictions, or due to management choice, would those sick pay/FMLA benefits continue, or would that person transition to Unemployment?

Since the employer would no longer be able to pay for the sick leave, they would apply for UI benefits.

I have an EE that works full time here, and part time at Home Depot.  If such an EE files for sick pay from our business to stay home to take care of a child out of school, but they also either continue as normal at their 2nd job, or increase hours at the 2nd job how does that work?  Would they be eligible for the sick pay, and how would we know that this was the case?

The Bill does not address this.  The Bill does not address how an employer confirms the need for time off.

Is 80 hours in excess of existing policy.  If we have 120 hours of PTO now, do we need to add 80 hours to all employees now?

If the employee meets the requirements under the order, they are eligible for an additional 80 hours.

If I can work from home, and my child’s school is closed, can I,  Or can my employer force me to take PTO?

If you can telecommute and your child’s school is closed, the employer must allow you to do so.

Can/should we get involved with assisting essential employees needing to pay for child care since their public school is closed, and now have an extra expense to come to work?

That would be discretionary; there are no requirements for this.

We already offer 80 hours of sick time, do we have to offer 80 more?

Yes.

FMLA/CFRA slide says “First two weeks may be unpaid, subsequent weeks paid by EEr at no less than 2/3…” does this mean that even though the EE may be eligible for UI/SD benefits the company is still required to pay for the time the EE he/she is on leave?

If an employee is eligible for EPSL and EFMLA, and they are still employed, then the employer will pay them. If the employee has reduced hours,NOT caused by having COVID-19, being quarantined at the recommendation of a health care professional, caring for a person who is quarantined, or caring for a child whose school/day care is closed, they would be eligible for unemployment.

If an employee has already used all their allowed sick time do they get more?

Yes.

EMERGENCY PAID SICK LEAVE – EPSL / PAID FAMILY LEAVE -PFL

Can employees apply for PFL benefits to care for children with no school?

EDD family paid leave – applicable?

PFL would not apply for school/daycare closures.

LEAVE

An employee is caring for a family member with a non-COVID-19 serious health condition, and is concerned about exposure at work.  If they choose to self-isolate, would they be eligible for any COVID-19 related programs, or should we have the employee apply for FMLA/CFRA for a family member and give them info on PFL for income support?

If they get a medical note from a doctor for “medical necessity” then they would be eligible for the new EPSL and the EFMLA.

If an employee is sent home for 14 days to self quarantine due to possible exposure to COVID 19, who iniciates contact after 14 days? Employer or employee? If employee doesn’t contacts us can it be considered job abandonment?

The employer should communicate with the employee to reach out after the 14 days.  If the employer does not hear from employee, we would recommend that the employer follow-up.

LINK

Can I please have the SBA site for disaster loans? 

https://www.sba.gov/about-sba/sba-newsroom/press-releases-media-advisories/sba-provide-disaster-assistance-loans-small-businesses-impacted-coronavirus-covid-19

Can I get the website url to access this presentation afterwards or will there be an emailed link to all attendees at the conclusion? Can you send the link in the chat box?

Scroll down

Can you provide a link to the cdc guidance?

https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

METHOD

When would a PTO or sick policy NOT be bonafide?

The term “bona fide” means that you have a written policy that complies with state law that is administered equally amongst employees, departments or classification.

If a full-time hourly employee wants time off because they are concerned with Covid-19 but does not want to use their PTO? What are our options? Unpaid time off? Other options?

If they are not sick with the virus or quarantined by a medical professional, the time off would be without pay or you could allow them to use available vacation, PTO or paid sick time

We have a current employee who is on a self quarantine. not a confirmed case. We are shutting down because we don’t have work. What are our options when his two weeks is up? Are we able to layoff given we don’t have work?

Yes.  He does not have any greater rights than those employees who had been working due to his self quarantine.

If we come to layoffs, can it be skill based and not necessarily years of service?

Definitely.  Years of service is mostly what unions or a Collective Bargaining Agreement would require.  When employers are forced to downsize, they naturally want to keep their best performers.  If you are using performance as a factor, you should have documentation on that fact.

Can you have some employees become work furloughed & others laid off?

You can. Guessing you mean that the employees who are laid off are actually terminated and the employees that are furloughed are still employed, yes you can do that.  Again, document your reasoning.

NOTICE

Is the temporary shut down of operations the same notice as permanent shut down of facility?

For purposes of WARN or Cal-WARN?  Yes. Cal-WARN has been suspended due to the COVID-19 crisis.

PAY

From what I heard, we can reduce the salary of an exempt employee during this time if there is less work available?  Or switch to hourly, non-exempt?

Can an employer adjust status of an employee from exempt to non-exempt while in furlough related to COVID-19?

If you think you need an exempt employee to work less hours or less days but still on a weekly basis, it might be best to reclassify that employee as non-exempt, temporarily, during this time.  They would need to track hours, take meal and rest periods and would be eligible for overtime.

POLICY

We heard that we were able to freeze PTO for eligible employees – but they still are allowed to accrue it?

PTO is a discretionary benefit and the employer always has the right to amend their benefits.  However, the company will still have an obligation to comply with state and city sick leave mandates.

PAID SICK LEAVE – PSL

If a salaried employee is sick for one day, but doesn’t have sick or PTO, do we have to pay them?

You do not.  If you have a sick leave policy and the exempt employee has no time, you can make a full day deduction from their salary.

I’ve thought you could deduct exempt employees pay for full days off if you have a sick pay policy and give PTO.

You can deduct full day or partial days from their sick leave or PTO banks.  You can never make partial day deductions from an exempt employee’s salary.  You can make full day deductions if the exempt employees are otherwise absenting themselves but not for a business closure or lack or work unless it is for a full week.

PAID TIME OFF – PTO

It sounds like we can require employees who are not comfortable coming to work, they can stay home and use PTO.  Can we allow them to go negative on their PTO if they don’t have enough time to get through the end of month.  (March 31st for OC)

You can yes, that would be at your discretion.

If we offer to allow Employees stay at home and use their PTO but they say no – they want to stay home but not use their PTO. Go with the furlough option and point them to the EDD for Unemployment?

Yes, however they are only eligible if there is no work for them, not if they are choosing to quarantine themselves.

QUESTION – EMPLOYEES

Can we request to know how high the fever is or take their temperature?

Under “normal” circumstances this would not be allowed but as of 3/19/20, the EEOC issued updated guidance which makes this permissible during a pandemic.

California is a strict privacy state. How vulnerable are we to ask if they may have, or been exposed to, COVID-19, and urge them to get tested?

Under the current conditions this is permissible.  If an employee is exhibiting symptoms you can require they go home and urge them to get tested.

RETURN

If you transition an employee from exempt to hourly, do you have to do the classification tests when re-onboarding?

Not a “test” necessarily, but they still need to meet the requirements for being an exempt employee so I would confirm that is still the case with salary and duties.

SENDING EMPLOYEE HOME

We have asked an individual to stay home, after he said he had flu like Symptoms, along with fever. He had visited Disneyland two weeks earlier. Concerned he may have been exposed, we are asking him to work from home. He is IT admin. When he is onsite, he is only actually busy 30% of the time, nature of the beast. Because we asked him to not come in, do we pay his entire 40 hours? He is non-exempt.

If he is non-exempt you are only required to pay him for the hours actually worked.  Have him record the time he is actually working and pay him accordingly.

If 65+ employee opts to stay home and not work, do they apply for UI benefits? Can employer ask 65+ employees to stay home? If so, does employer have to pay them or can they file for UI?

We would not recommend asking or telling the employee to stay home.  Make them aware of the risks.  They can apply for UI benefits, but the EDD site is unclear as to whether employees who are choosing to self-quarantine, without doctor notice, would be eligible for benefits.  Site specifically says “may” be eligible.

A non-exempt employee (who is not in 65+ category) wants to self-isolate out of abundance of caution and doesn’t have enough Sick/ PTO balance to use. What options can employer provide reasonably and consistently?

This would be at the employer’s discretion.  The employee would either be taking time off without pay or the employer may consider allowing the employee to go into the negative on their paid time off.  This is risky because recouping the money may be difficult; maybe consider a cap on this?  Otherwise the employee can apply for UI benefits but there is no guarantee that they would qualify for self-quarantine.

If I have someone going out because he’s sniffling little sore throat.  He is 65 +.  Do I have to notify all staff?

No.  Unless an employee has been diagnosed or around someone who has been diagnosed, you do not need to notify staff.

If we want to allow 65+ YO/otherwise vulnerable employees to work, what about having them sign an acknowledgment that their employer advised them they could stay home and they chose to continue to work despite being at greater risk to contract COVID 19?

Because this is not a work-related situation as far as liability is concerned, the acknowledgement is not really necessary.

We have an employee stay at home b/c wife has fever – says she’s feeling better – how should we handle him coming back to work? can we ask him if he has any symptoms?

Yes, you can ask.  If you know the wife has been diagnosed, you can require that the employee self-quarantine for the 14 days.

START DATES

What language would you advise we use in our job offer letters regarding possible delayed start dates for factors beyond our control related to the COVID-19 Pandemic? What is our potential liability if someone has already given notice to their previous employer?

Be upfront with the applicant on the circumstances and make sure that you are not making any promises regarding start dates.  Ensure communication.  There is a potential of liability when an employee quits one job for another due to a promise of employment; that liability could be lessened under the circumstances.

TELECOMMUTING

If you allow employees to work remotely, can you require them to be work standard work day from 8:00-5:00 (1-hour) lunch?

Yes.

Can we specify hours of work for employees who are telecommuting?  Maximum response times?

Yes, this would be best practice.

Can you ask hourly employees who are working at home to justify the hours they are claiming to work?  Example: Provide list of work completed along with time assigned to task?

Yes, this would be best practice.

Is telecommuting a privilege? How may we select which employees can telecommute and which ones can not?

Under “normal” circumstances, it may be considered a privilege. Now the state is more or less telling employers to let your employees telecommute if they can. Some jobs are just not going to be suited for work from home but others naturally will.

What do you will be the “reasonable” reimbursement for internet, phone etc.? And suggestions on how to determine.

This might be determined on a case-by-case basis determined on the employee’s job and how much they are using their personal devices.  SDEA has an Excel sheet to help employers with this calculation.

Can an employee request to work from home due to fear of exposure and the workplace has remote access available?

They can certainly request it. We are recommending that employers be flexible with their employees. If it is possible for the employee to work from home we are suggesting that you allow it.

We have an employee that lives in Mexico and if the border closes, but they can work from home, can we furlough or layoff, even if we as the company have remote capabilities and that employee could work remotely. In other words, they can’t physically come to work due to a border closure.

The Bill signed by the President requires employers to allow employees to work remotely when they can.  So, if an employee can reasonably work remotely, it should be allowed.

Do we HAVE to allow for EEs to work remotely? It isn’t feasible in our organization

If they can work remotely, you must allow it.  This will not apply to all business or all positions within a business.

Can an employer retaliate if an employee decides to work from home without authorization? (some employee are so nervous that they simply do not want to come into work, but they have the capability to work remotely)

We would never recommend that an employer retaliate against an employee.  However, if an employee is going against employer’s orders, they can be disciplined.  As discussed in this QA, we recommend allowing employees to telecommute if possible.

We usually utilize Facebook Portal for meetings. Can we force employees to take them home to use?

If it is a requirement of their job, then yes you can.

If an employee already telecommutes can that employee request special benefits to telecommute? Can their at home hours be decreased?

If there work is affected, i.e., less work available, then you can reduce their hours. 

TERM

Are there any restrictions on terminating employees that have been laid off previously? for example, an individual with documented disciplinary actions is laid off due to corona, can they be terminated during layoff or soon after returning?

Just like any other termination, make sure you have it well documented.  Depending on the communication and specific warning that was provided to the employee prior to the layoff, we would suggest a final warning when they return prior to termination.

UNEMPLOYMENT INSURANCE – UI

Can employees file for UI if the employer is not part of the Work Share program?

Yes.  Employees will be eligible for UI benefits due to lack of work regardless of Work Share.

At what point does an ER go from a furlough to a layoff? Is there a timeframe?

During a time of Furlough, what are the employers obligations around health benefits and keeping them active?

If I furlough employees, what do I do about health insurance?

Does “final pay” include unused vac/PTO if furloughed longer than next pay period?

Is the work share program better than having the employee file for UI for reduced hours? Is there a percent or number that would qualify them for UI?

If you are furloughing an employee are you required  to pay out an employee’s banked PTO?

Essentially, a furloughed employee remains an employee but with reduced or eliminated work hours, while a layoff generally means a complete employment severance. 

However, under the current circumstances, the California Labor Commissioner may not see a real difference between a temporarily furloughed employee without any work hours and a laid-off employee.  This could also trigger the end of employer-sponsored benefits which would require a COBRA notice.  Work Share requires that an employer continue benefits.  Employees can apply for UI benefits due to a reduction of hours whether in part or entirely. 

In a pair of opinion letters, the Labor Commissioner stated that if an employer reduces an employee’s scheduled work hours to zero — and does not 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.

Can we observe both workshare and Layoffs at the same time?

I believe so. Work Share requires that you provide specific employee names to the EDD, that may not apply to everyone; those who are not part of Work Share could apply for UI benefits.

For Unemployment does it matter if it is labeled as a furlough vs layoff?? vs temporary layoff…  is there a difference

The lack of work, regardless of the “label” is a trigger for UI benefits.

Do exempt employees have to be paid during the shutdown?

Exempt employees must be paid their full weekly salary for any time they work in a week unless they are taking time off for their own personal reasons.  If they perform no work in a week, they are not required to be paid.

For furloughs – I understand how we pick who – but is there a minimum number that we have to furlough or is 1 okay? And if we do furlough someone, do we point them to the EDD for Unemployment Insurance?

We always say a “layoff of one” could be a red flag, however, these are not normal circumstances.  I think keeping as many employees as you can employed is optimum.  If you legitimately have to furlough or lay off one employee then yes, provide them with information to apply for UI benefits.

Can employers supplement Unemployment Benefits to make employees whole?

You can but because the maximum UI benefit is $450/week, if an employee is receiving some sort of wages above that amount, it could affect their benefits.

The workshare program does require the application to be mailed via USPS and takes about 10-15 business days to process. We are already reducing hours/wages so my question is, should we advise employees to file for unemployment first so that they don’t have to wait for the workshare program to be approved?

I would suggest this, yes.

…follow-up from my above question, if the employees get on unemployment, then we’re approved for the workshare program later down the line, will employees be automatically converted to the workshare program?

From what I read, you would need to “cancel” Work Share.

If management decides to close a business due to COVID19 concerns without a government mandate, will the employees be eligible for the 0-day waiting period unemployment benefits?

Yes, due to lack of work.

If we eliminate hours for a few employees until we re-open the office, do we have to sign up for the Work Share program?  Or can we keep those folks employed and encourage them to file with EDD in the interim while they are not working hours?

At this point we are recommending that the employee apply for UI benefits.  The Work Share program is a lengthier process.

Are employees who work for a religious non-profit daycare (like a church or synagogue) eligible to file for unemployment if they are not working during this time?

If they pay into the program, they can file for benefits.

Would those 65+ who choose to stay home be eligible to apply for UI?

They should, yes.  The EDD website is unclear on whether they will be eligible for benefits or not if the quarantine is not from the direction of a medical provider.

Is there a difference between furlough and lay off with respect to employee unemployment benefits?

Not really.  Even a reduction in hours could make an employee eligible for partial benefits or benefits for a (hopefully) short period of time.

I have a question! I’m getting many employees that have reduced hours asking us to fill out the DE 2063 form for the EDD – is this something that I can fill out at the beginning of the same week they have the reduced hours. i.e. their reduced hours start mon. 3/16 – they want to start their edd paperwork the same day…?

Work Share requires that the employer “apply” then the EDD will send the employer notices to give to their employees.  Since this can only be done through the mail, this might be a delayed process and direct UI benefits might be a better option. The Notice of Reduced Earnings needs to be filled out for each pay period.

What resources are available to employees who have not paid into Unemployment Insurance? (asking for a friend) — not eligible for UI Benefits, so what recourse do they have?

If they have not paid anything into unemployment, they will not be eligible for benefits.  If they have worked for another employer, prior to their current employer, they should still file and would possibly be eligible.

Do employers have to apply for WorkShare or can they just have employees apply for Unemployment?

You can have them apply for unemployment; Work Share is not required.

What if an employer puts employees out on furlough, but can’t afford to pay the er and ee portion of benefits?

You should run this by your benefits broker.

Should employees file now with the EDD if it takes 2 weeks to qualify to receive payments?

They should apply when they are laid off.

If our employees are having reduced hours yet we are keeping them all working so they can share hours does this require a formal workshare application?

It does not.  Your employees can still file a claim for reduced hours.

Regarding the work share program. Do you know what the process looks like and the timeline – we submitted our application on Monday and we were wondering how long before we hear something?

Sorry. Not sure on the timeline. I know once you apply, the EDD will send you notices to provide to your employees. I imagine everything is taking longer than usual right now.

Are furloughed employees eligible for unemployment? I don’t want to lay people off and rehire them if I don’t need to.

Yes, reduction in hours, furlough, layoff, etc., make an employee eligible for UI benefits.

WARN ACT

As part of the written notice given as soon as possible for mass layoffs, does this also apply for students employed part-time on-campus with their university / college?  Would they be eligible for unemployment as well?

If the student is an employee, paying taxes and have lost their job or reduced hours, they can apply for UI benefits.

WARN Notice – 12 employees in location.  Can I assume WARN notice doesn’t apply at all?

Correct.

WARN Notice question  — common ownership by out of state corp.  12 employees in CA, 125 in Texas.   Another 18 CA employees coming onboard in another location (via business purchase by common owner).  If Texas closes down simultaneously w/CA entities, are we then required to give WARN notice to CA employees.

This question is best suited for your employment law attorney, sorry.

What is the Executive Order number for CA WARN?

https://www.gov.ca.gov/wp-content/uploads/2020/03/3.17.20-EO-motor.pdf

What if we are less than 50 EE’s & are looking to do a massive lay off?

Neither WARN or Cal-WARN applies.

If there is a mass layoff, Do you have a list of the agencies that must be sent the mass lay-off letter?

Your Local Workforce Development Areas (Local Areas) will assist you in contacting the chief elected officials in those communities affected by the planned layoff or closure. https://www.edd.ca.gov/Jobs_and_Training/Local_Area_Listing_by_County.htm

What exactly are the WARN Act emergency exemptions to notice requirements?

https://www.gov.ca.gov/wp-content/uploads/2020/03/3.17.20-EO-motor.pdf

WORKERS’ COMP

For those of us still operating, should we be documenting what we are doing to protect employees: Extra cleaning, creating space so employees are distanced etc.   Reason: are we liable if an employee says they contracted the virus at work?

No liability as far as workers’ comp but the documentation might help ease employee concerns–communicating that to them.

Is there a Workers Comp exposure if employees contract COVID-19 at the workplace? (I’ve seen this mentioned elsewhere, but it’s not typical for viral illnesses)

If an employee has COVID-19 – is that considered an OSHA reportable incident?

According to legal advice, this is not a work-related incident.

*Please share with everyone you think may benefit from this information.

We’ll get through this together.

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