COVID/Employment

As our earlier post on March 19, 2020 announced, Governor Newsom issued Executive Order N-33-20 ordering all residents to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors as defined by the federal Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA”).

In order to assist businesses in determining whether they fall within one of the recognized critical infrastructure sectors and identifying essential critical infrastructure workers, the CISA developed an initial list of “Essential Critical Infrastructure Workers” to help State and local offices as they work to protect their communities, while at the same time ensuring continuity of functions critical to public health and safety, as well as economic and national security.

The list is advisory in nature and is not a federal directive or standard in itself.  However, in reliance on the CISA list, on March 20, 2020, California’s Public Health Officer issued a similar – but somewhat more expansive – list of “Essential Critical Infrastructure Workers” that will be relevant when analyzing compliance with Governor Newsom’s Order.  The list includes various types of jobs under different categories of critical infrastructure sectors that conduct a range of operations and services that are deemed essential to continued critical infrastructure viability in California.

A PDF of the California Public Health Officer’s “Essential Critical Infrastructure Workers” list can be viewed or downloaded here.

The attorneys at Weintraub Tobin continue to wish you and your families good health during these difficult times.  If we can be of assistance to you in analyzing your workforce under Executive Order N-33-20 and California’s Essential Critical Infrastructure Workers list, feel free to reach out to one of us.

On March 18, 2020, Congress passed the Families First Coronavirus Response Act (“FFCRA”). The President quickly signed it into law on the same day. The Act provides paid sick time and expands the Family and Medical Leave Act to provide an extended period of unpaid or partially paid leave for qualifying reasons related to the coronavirus [COVID-19] public health emergency.  Below is a summary of the portions of the new law relating to employee benefits and employer obligations.Emergency Family and Medical Leave Expansion Act (E-FMLA)Effective Period

• This Act will go into effect no later than 15 days after the enactment of the FFCRA (April 2, 2020) and the Act will expire on December 31, 2020.

Eligible Employees

• The Act applies to employees who have been employed for at least 30 calendar days by the employer.

Covered Employers

• The Act requires all employers with fewer than 500 employees to provide this leave.

Qualifying Reasons for Leave

• E-FMLA leave is available under this Act for an employee who is unable to work (or telework) due to a need to care for the employee’s son or daughter who is under 18 years of age if the child’s school or place of care has been closed or the child care provider of the employee’s child is unavailable due to a public health emergency.

Unpaid/Paid Leave

• The Act provides for a combination of unpaid and paid leave.  The first 10 days of E-FMLA leave may be unpaid leave.  However, the employee may elect and an employer may require an employee to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid for unpaid leave under the Act.  For many employees, this first 10 day period will likely be paid as a result of receipt of paid sick leave under the Emergency Paid Sick Time Act under the FFCRA (discussed below). After the first 10 days, employers shall provide an employee paid leave for each additional day of leave in an amount that is not less than two-thirds of the employee’s regular pay rate for the number of hours the employee would otherwise be normally scheduled to work.  For an employee whose schedule hours varies from week to week, the employer shall use the employee’s average number of hours per day over the 6-month period ending on the date the employee takes leave under the Act.
• In any case, the paid leave under E-FMLA shall not exceed $200 per day and $10,000 in the aggregate.

Job Restoration

• FMLA’s job restoration requirements apply to employers with 25 or more employees.  For employers who employ fewer than 25 employees, E-FMLA’s job restoration requirement shall not apply if the following conditions are met:

1. The employee takes leave under the Act;
2. The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer caused by a public health emergency during the period of leave;
3. The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent benefits, pay, and other terms and conditions of employment; and
4. If the reasonable efforts of the employer to restore the employee to an equivalent position fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available in the next year.

Employment under Multi-Employer Bargaining Agreement

• An employer who is a signatory to a multiemployer collective bargaining agreement may fulfill its obligations under the E-FMLA by making contributions to a multiemployer fund, plan, or program based on the paid leave each of its employees is entitled to under such section while working under the multiemployer collective bargaining agreement, provided that the fund, plan, or program enables employees to secure pay from such fund, plan, or program based on hours they have worked under the multiemployer collective bargaining agreement for paid leave taken under the Act.

Special Rules and Exemptions

• An employer shall not be subject to the E-FMLA if: (1) the employer employs more than 500 employees; or (2) the employer of a health care provider or an emergency responder elects to exclude such employee from the application of the provisions under the Act.

Regulatory Authorities

• The Secretary of Labor shall have the authority to issue regulations to (1) exclude certain health care providers and emergency responders from the definition of eligible employee; and (2) to exempt small businesses with fewer than 50 employees from the requirement of the E-FMLA.

Emergency Paid Sick Leave Act (“E-PSLA”)

Effective Period

• The E-PSLA will also go into effect no later than 15 days after the enactment of the FFCRA (by April 2, 2020) and will expire on December 31, 2020.

Purposes for Taking Sick Leave

• The E-PSLA requires private employers who employ fewer than 500 employees and government employers to provide paid sick time to employees if they are unable to work (or telework) because:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. The employee is caring for an individual who is subject to a quarantine or isolation order related to COVID-19;
5. The employee is caring for a son or daughter because the child’s school or place of care has been closed or the child care provider is unavailable due to COVID-19 precautions;
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

• Exception: Employers of health care providers or emergency responders may elect not to provide the sick leave under the E-PSLA to those employees.

Reasonable Notice to Employer

• After the first workday (or portion thereof) an employee receives paid sick time under the E-PSLA, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.

Amount of Emergency Paid Sick Leave

• Full-time employees shall be entitled to 80 hours of paid sick time under the E-PSLA; part-time employees shall be entitled to the number of hours equal to the average number of hours the employee works over a two-week period.  For an employee whose schedule varies from week to week, the employer shall use the employee’s average number of hours per day over the 6-month period ending on the date the employee takes leave under the Act.
• Paid sick time under the E-PSLA shall be available for immediate use by the employee regardless of how long the employee has been employed by the employer.

No Carryover and Termination of Paid Sick Time

• Paid sick time under the E-PSLA does not carryover from one year to the next.  Once an employee who received paid sick time under the Act returns to work, the employer is not required to provide the employee any further paid sick time under the Act.

Prohibitions

• An employer cannot require, as a condition of providing paid sick time under the E-PSLA, that an employee search for or find a replacement employee to cover the hours during which the employee is using sick time.
• An employer cannot require an employee to use other paid leave before the employee uses the paid sick time under the E-PSLA.

Notice to Employees

• Employers are required to post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, (which is to be prepared or approved by the Secretary of Labor), of the requirements described in the E-PSLA.  The Secretary of Labor shall make a model notice publicly available no later than 7 days after the enactment of the E-PSLA.

Pay During Sick Leave

• If an employee takes sick time off for self-care, the employee shall be compensated at whichever is greater of the following:

1. The employee’s regular pay rate;
2. The federal minimum wage rate; or
3. The state or local minimum wage rate in effect for such employee.

• If an employee takes sick time off to care for a sick family member or a child who is not in school or child care because of closures or unavailability due to COVID-19, the employee shall be compensated at two-thirds of their regular pay rate.
• In any event, the sick leave pay under the E-PSLA shall not exceed $511 per day and $5,110 in the aggregate for a use described in categories 1, 2, and 3 under “Purposes for Taking Sick Leave” above, and shall not exceed $200 per day and $2,000 in the aggregate for a use described in categories 4, 5, and 6 under “Purposes for Taking Sick Leave” above.

Employment Under Multi-Employer Bargaining Agreement

• An employer signatory to a multiemployer collective bargaining agreement may fulfill its obligations under the E-PSLA by making contributions to a multiemployer fund, plan, or program based on the hours of paid sick time each of its employees is entitled to under such section while working under the multiemployer collective bargaining agreement, provided that the fund, plan, or program enables employees to secure pay from such fund, plan, or program based on hours they have worked under the multiemployer collective bargaining agreement for paid leave taken under the Act.

Prohibited Acts and Enforcement

• The E-PSLA prohibits employers from discharging, disciplining, or discriminating against any employee who takes paid sick leave under the Act, or has filed any complaint or instituted or caused to be instituted any proceeding under or related to the Act, or has testified or is about to testify in any such proceeding.  Employers who fail to provide paid sick time under the E-PSLA or who terminate an employee for discriminatory reasons as set forth above will be considered in violation of the Fair Labor Standards Act and subject to the Fair Labor Standard Act’s penalties, including payment of back pay, liquidated damages, and attorneys’ fees.

Tax Credits

• The FFCRA provides tax credits for the employer’s portion of payroll taxes for wages paid to employees taking either paid sick leave under the E-PSLA or FMLA leave under the E-FMLA.  Employers should further review the FFCRA regarding such tax credits and work with their CPA and/or tax attorney regarding such credits.

Regulatory Authorities

• The Secretary of Labor shall have the authority to: (1) exclude certain health care providers and emergency responders from the definition of employee under the Act, including by allowing the employer of such health care providers and emergency responders to opt out; and (2) to exempt small businesses with fewer than 50 employees.

The Labor and Employment attorneys at Weintraub Tobin remain available to assist employers in their employment law compliance throughout these very difficult and uncertain times, including helping them navigate and comply with the new requirements under the FFCRA.  Feel free to reach out to any of them for assistance.  Also, the Secretary of Labor has the authority to establish guidelines under the E-FMLA and the E-PSLA.  We are closely monitoring the Secretary of Labor’s actions and will provide guidance as any updates occur.