COVID-19: California Employer Frequently Asked Questions
(Updated March 19, 2020)
1. Can I ask employees to leave the workplace and stay home if I suspect they have COVID-19?
If an employee is exhibiting symptoms related to COVID-19 (i.e., cough, shortness of breath, fever) you may ask the employee to leave work and stay home until the employee is symptom-free. While the Centers for Disease Control and Prevention (CDC) recommends a person recovering from the flu stay home until at least 24 hours after the person is symptom free, with COVID-19, the CDC recommends consulting with a healthcare provider and state/local health departments to determine when it is OK to return to work.
2. What if the employee is not exhibiting symptoms related to COVID-19, but recently returned from a country with a CDC warning?
If an employee recently returned from a country with “High Risk,” you should ask the employee to remain at home for a minimum of 14 days after the employee returns from travel. For an up-to-date list of “High Risk” countries visit the CDC’s Travelers from Countries with Widespread Sustained Transmission Arriving in the United States, and the Traveler’s Health pages. Since this is changing on a daily (or even hourly) basis, you should continually check the CDC website for updated suggestions on travel.
3. Do I have to pay an employee I ask to leave work or stay home due to COVID-19?
Non-exempt employees: If the employee reports to work and is sent home before working a full shift, you must pay the employee at least two hours or no more than four hours of reporting time pay. If the employee stays home and does not report to work, you can ask, but not require, the employee if they wish to use paid sick pay. If the employee exhausts sick pay, PTO, or vacation pay benefits and the employee is still ill, we suggest you consider a reduced hourly rate or continue paying the normal hourly rate for a certain time period. This will encourage employees to remain home and not return to work prematurely. However, once all legally required paid time off is exhausted, you are not obligated to pay non-exempt employees if they are not working for you.
However, federal legislation on this issue (The Families First Coronavirus Response Act) requires most employers to provide additional paid sick to employees unable to work for certain reasons related to COVID-19 (see below).
Whatever policy you adopt, we suggest you apply it uniformly across your workforce to reduce the risk of discrimination claims based on protected characteristics. Of course, if an employee is able and permitted to work from home, the employee should be compensated for all hours worked (see also FAQ #13: Can I Have My Employees Work Remotely from Home? below).
Exempt employees: You must pay exempt employees who are ready and willing to work, but asked to stay home during a workday. In contrast, employers are not obligated to pay exempt employees if they perform no work for an entire “workweek,” as long as they still earn the requisite minimum monthly salary (2x the state’s minimum wage on a salaried basis). Given that many exempt employees can and do work remotely (e.g., through phones, remote access, etc.), we do not see this occurring on a widespread basis.
4. If an employee is diagnosed with COVID-19, should I inform everyone at the same workplace?
If an employee is confirmed to have COVID-19, you should advise other employees who could potentially have had contact with that employee about possible exposure to COVID-19. You may not disclose the name of the affected employee and must take all possible steps to maintain the confidentiality of the affected employee. However, we expect some employees will permit the disclosure of their identity, in order to help their co-workers avoid exposure.
For questions or concerns about additional steps to take due to potential exposure to COVID-19, contact the CDC by phone (800-232-4636) or email via this form: https://wwwn.cdc.gov/dcs/ContactUs/Form, 24/7.
5. What should I do if an employee no longer wants to work with another employee out of fear of contracting COVID-19?
If the fear is based on legitimate factors (e.g., the other employee is exhibiting possible COVID-19 symptoms), you should assess whether the employee with symptoms should be separated from other employees or sent home. However, if “Sally” doesn’t want to work with “James” because, e.g., James was born in Italy, you should counsel Sally by reminding her your company does not tolerate unlawful discrimination. An employer has a legal obligation to protect its employees against unlawful harassment, discrimination and retaliation.
6. Can I require an employee to provide a doctor’s note if the employee stays home due to symptoms consistent with COVID-19?
California paid sick leave law permits employees to give notice of sick leave either verbally or in writing. This has been interpreted to mean that employers may not condition paid sick leave on an employee providing medical certification. If the request for a doctor’s note is not related to paid sick leave, it is permissible. However, the CDC recommends not requiring a doctor’s note at this time since health care providers are overwhelmed.
If you suspect an employee is not truly ill but using COVID-19 as an excuse to not come to work when healthy, please contact us for advice on how to address this situation.
7. If schools are closed and an employee requests time off to care for a child at home, do I have to grant the request?
California law prohibits employers with 25 or more employees from discharging or discriminating against an employee who is a parent of one or more children for taking off up to 40 hours each year to “address a child care provider or school emergency, if the employee gives notice.” A “parent” is defined to include a parent, guardian, stepparent, foster parent, or grandparent of, or a person who stands in loco parentis to, a child.” The closing of a school due to COVID-19 would be considered a “school emergency,” which is defined to include the “Closure or unexpected unavailability of the school…”
Please note the CDC encourages employers to maintain flexible policies that permit employees to stay home to care for a sick family member since it is anticipated that more employees will need to stay home to care for sick children or other sick family members than is usual.
Further, The Families First Coronavirus Response Act provides partially paid protected time off and paid sick leave to eligible employees who need leave to care for a child whose school has been closed due to COVID-19.
8. Is there any documentation I should provide to an employee who has been diagnosed with COVID-19 or needs to take time off to care for a family member diagnosed with COVID-19?
If an employee is unable to work due to having or being exposed to COVID-19, (certified by a medical professional or a state or local health officer) the employee can file for State Disability Insurance (SDI) with the California Employment Development Department (EDD). You should provide SDI information to affected employees, which consists of the following brochure: Disability Insurance Provisions (DE 2515). If the employee is taking time off to care for an ill family member, the employee can seek EDD benefits from the Paid Family Leave (PFL) program. You should provide this brochure: Paid Family Leave Benefits (DE 2511).
Quarantined employees who are not eligible for SDI may apply for unemployment insurance benefits.
9. Is there any other documentation I should provide to my employees regarding COVID-19?
Although not required, we recommend posting the CDC’s Stop the Spread of Germs poster throughout the workplace as a reminder about practices to prevent the spread of illness. We also encourage employers to prepare and circulate a memo to employees about safe work practices and employer expectations. Information to consider including in a memo are:
- Steps to prevent illness (e.g., cleaning hands frequently, avoid close contact with others, etc.);
- What an employee should do if they are feeling ill;
- What steps an employee should take if they are planning to travel to a country designated by the CDC as “High Risk;”
- What management should do if an employee is feeling ill.
Updates should be circulated as new information and recommendations about COVID-19 become available. Good communication is key.
Additional notice regarding paid sick leave under the Families First Coronavirus Response Act must be posted in the workplace (to be prepared or approved by the Department of Labor by March 25, 2020.)
Employees who need time off to care for themselves or a family member due to COVID-19 should also be provided information regarding PFL benefits and/or SDI (See FAQ #8 above). Employers who reduce hours or who temporarily lay off employees should also provide information concerning unemployment insurance benefits and other notices, depending on the employer’s size. (See FAQ #12 below).
10. Can I require my employees to purchase hand sanitizer, cleaning supplies, tissue and other products designed to prevent the spread of illness?
It is best for the employer to provide these products and not require employees to purchase them. Making these products readily available will increase the chance your employees will use them. If you do require employees to purchase these products, you should make sure to reimburse the purchases or else you will risk being in violation of the Labor Code.
11. Does workers’ compensation apply to employees who contract COVID-19?
If an employee becomes infected as a result of their work (e.g., health care workers, employees working in high risk areas), Workers’ Compensation may likely apply. While the Department of Industrial Relations (DIR) has not yet provided guidance regarding COVID-19, the DIR instructs employers to send employees with increased risk of becoming infected with Valley Fever (an infectious fungus) to a workers’ compensation healthcare provider. The DIR may likely take a similar approach with respect to employees with increased risk of infection from COVID-19
12. COVID-19 affected my business and I need to make changes for financial reasons. Can I reduce employee hours or temporary lay off employees?
Employees in California are generally “at-will.” This means an employer may change the terms and conditions of employment (to the extent permitted by law) with or without notice or cause, unless a contract, collective bargaining agreement, or terms of employment state otherwise. Employees who experience a reduction in hours or shut down due to COVID-19 can file an Unemployment Insurance (UI) claim. Per the EDD, employees who are temporarily unemployed due to COVID-19 and expected to return to work with their employer within a few weeks are not required to actively seek work each week. However, they must remain able and available and ready to work during their unemployment for each week of benefits claimed and meet all other eligibility criteria. Eligible individuals can receive benefits that range from $40-$450 per week.
The EDD encourages employers who are planning a closure or major layoffs because of COVID-19 to contact the Rapid Response program which may help avert potential layoffs and provide immediate on-site services to assist employees facing job losses.
Employers who are covered
under the federal or state Worker Adjustment and Retraining Notification (WARN)
Acts may be required to provide advance notice to all affected employees and to
other parties prior to plant closings or mass layoffs.
On March 18, 2020, Governor Newson signed Executive Order N-31-20, temporarily suspending Cal-WARN advance notice requirements where a mass layoff, relocation or termination is caused by COVID-19-related “business circumstances that were not reasonably foreseeable as of the time that notice would have been required.” The Labor and Workforce Development Agency was instructed to provide guidance to the public regarding implementation of the Executive Order by March 23, 2020.
It is important to note that NOTICE IS STILL REQUIRED but given the pending crisis, a full 60 days may not be required for the reasons stated in the Order. Instead, an employer must give as much notice as is practicable and provide a brief statement of the basis for reducing the notice period.
The WARN notice must state: “If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at labor.ca.gov/coronavirus2019” and be sent to all affected employees, the EDD, the local workforce investment board, and the chief elected official of each city and county government within which the termination, relocation, or mass layoff occurs.
Further keep in mind that the federal WARN Act includes an exception for “unforeseen business circumstances.” Under the regulations, the “unforeseeable business circumstances” exception applies to plant closings and mass layoffs caused by business circumstances that were not reasonably foreseeable at the time that 60-day notice would have been required.
You should contact legal counsel to discuss further if you are considering layoffs.
13. Can I have my employees work remotely from home?
Yes, but you should consider the following issues before doing so:
- Necessary business expenses: If your employees need to use the internet and/or phone to work remotely, the employer will need to reimburse the employee for the expense the employee incurs to use the internet and/or phone for business purposes. If working from home requires the use of certain equipment (e.g., a computer, printer, etc.), and the employee does not already own the equipment, the employer must provide the equipment or reimburse the employee for the cost of the equipment.
- Tracking hours: Do you have a reliable method to track hours worked and meal periods for your non-exempt employees?
- If employees cannot log work hours and breaks remotely, consider creating a form employees can use to log their time and have them return their form (either every day, week, or pay period), so you can address any issues as they arise.
- Provide employees with a copy of your meal, rest and overtime policies to reiterate the importance of complying with these policies while working remotely.
- Instruct non-exempt employees to perform work only during their regularly-scheduled workday and instruct managers to only communicate with non-exempt employees during their regular schedule.
14. I am Experiencing a Downturn in Business Due to COVID-19. Can I Reduce the Schedules and Wages/Salary for my Employees?
Non-Exempt: You can reduce the hours and rate of pay provided you pay at least minimum wage for all hours worked. For employees working within the City of Los Angeles or the unincorporated areas of Los Angeles County, the current hourly minimum wage is: $13.25 for small businesses (25 or less employees) and $14.25 for large employers (26 or more employees). Other cities have other minimum wage rates. If your employees do not work in a location with its own minimum wage, then at a minimum your employees must be paid the State’s minimum wage ($12.00 for smaller employers of 25 or less employees; and $13.00 for larger employers of 26 or more employees).
Exempt: The answer is not clear with exempt employees since there is no California court decision or statute that addresses this specific issue. However, the California Division of Labor Standards Enforcement (“DLSE”) issued an Opinion Letter involving a similar issue in response to an inquiry from a business experiencing a downturn in business in 2009.
The DLSE opined that reducing an exempt employee’s scheduled work days with a corresponding reduction in salary was “not prohibited under California law” so long as: (1) the employee still meets the salary test by earning a monthly salary equivalent to no less than two times the state minimum wage; and (2) the employee continues to satisfy the duties test for the applicable exemption.
While the Opinion Letter suggests a temporary reduction in work schedule and salary is not prohibited where a business is experiencing economic difficulties due to a severe economic turndown (something that many businesses are now experiencing), it is important to note the following:
- The DLSE opinion is not binding on California courts. A court could come to a different conclusion and find a reduction in salary is prohibited.
- The DLSE opinion is based the specific facts presented to it by the employer, including: (1) the employer was experiencing significant economic difficulties due to the then-current severe economic downturn; (2) the employer wanted to implement the change to avoid layoffs; (3) the employer intended to restore the full schedule and salary as soon as business conditions permitted; and (4) the employer did not intend to adjust the salary any more frequently than described. You can review the Opinion here: https://www.dir.ca.gov/dlse/opinions/2009-08-19.pdf.
We have reached out to the DLSE to inquire whether this Opinion Letter can be applied under these circumstances and are standing by to hear back.
An alternative approach: For exempt employees who need to stay at home but cannot work a regular full-time schedule, e.g., due to illness or to care for another, an employer can consider transitioning employment status from exempt to non-exempt on a temporary basis. If you choose to make this change, you must pay the employee on an hourly basis, and comply with all laws applicable to a non-exempt hourly employee (e.g., provide meal and rest breaks, pay overtime, record hours, etc.) If you are considering reducing schedules and salary for exempt employees, or transitioning employees classified as exempt to non-exempt, you should consult with employment counsel before doing so as neither approach is without risk.
15. Employer Resources for Further Information Regarding COVID-19
- Employment Development Department (EDD): https://www.edd.ca.gov/about_edd/coronavirus-2019/faqs.htm
- California Department of Industrial Relations (DIR): https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm
- U.S. Department of Labor (DOL): https://www.dol.gov/coronavirus
- Occupational Safety and Health Administration (OSHA): https://www.osha.gov/SLTC/covid-19/
- The Centers for Disease Control (CDC): https://www.cdc.gov/coronavirus/2019-ncov/community/index.html
- World Health Organization (WHO): https://www.who.int/emergencies/diseases/novel-coronavirus-2019
Sue M. Bendavid, Nicholas Kanter and Tal Burnovski Yeyni are employment defense attorneys.