COVID-19 Employment Law Update: Families First, California WARN and Shelter in Place
In the last few days, federal, state and local governments have issued formal and informal guidance addressing family leave, paid sick leave, the California WARN Act and the state’s shelter-in-place orders to address the impact of the COVID-19 pandemic. We rounded up the latest guidance for employers.
The federal Department of Labor issued helpful guidance and employer/employee FAQs, regarding the federal Families First Coronavirus Response Act signed into law last week and summarized here. The guidance addresses, among other issues, the interplay between the family leave and paid sick leave components of the act when an employee is eligible for both types of leave.
The DOL also issued an approved workplace posting for the new law.
Further, the federal economic stimulus bill (CARES Act), which Congress approved on March 27, 2020, amends the FFA in several key respects. First, the CARES Act clarifies that an employer’s obligation to provide emergency paid sick leave to employees expires at the earlier of the time when the employer has paid that employee for the equivalent of 80 hours of work, or upon the employee’s return to work after taking paid leave. Second, the CARES Act extends the Secretary of Labor’s authority to exempt small businesses not only from the requirement to provide paid leave to an employee who is unable to work (or telework) due to a need to care for a child (under the age of 18) if the school or place of care for the employee’s child has been closed, or the child’s care provider is unavailable, due to COVID-19 precautions; but also from the requirement to provide paid leave due to an employee’s need to care for an individual subject to a quarantine or isolation order, or who has been advised by a health care provider to self-quarantine, due to concerns related to COVID-19. Small businesses with fewer than 50 employees are eligible to apply for this exemption if the imposition of such requirements would jeopardize the viability of their business as a going concern.
Third, the CARES Act implements significant payroll tax deferrals and credits for eligible employers, as described fully in our tax alert: “CARES Act Tax Provisions: Congress Approves Tax Relief for Businesses and Individuals.”
California’s Department of Industrial Relations issued guidance regarding Governor Gavin Newsom’s executive order, summarized here, partially suspending the state’s WARN Notice Act, and allowing businesses to assert an “unforeseeable business circumstances” exception for mass layoffs and shutdowns triggered by COVID-19. The DIR’s guidance tracks closely with the executive order and reaffirms that businesses must give as much notice as practicable, i.e. they are not completely exempted from having to give notice at all. What is “practicable” is a facts and circumstances analysis and will vary depending upon the unique circumstances of each layoff or shutdown.
There remains uncertainty as to precisely how Governor Newsom’s statewide order impacts the previously issued orders from several California counties (including several San Francisco Bay Area counties), and specifically whether the statewide order supersedes (and renders inapplicable) the county orders or not. An FAQ from the state does not directly answer the question, and guidance from at least one county (Santa Clara) indicates that the state and county orders are “complementary.” Nevertheless, while the statewide order is principally tied to a list of 16 critical infrastructure industries established by the federal government, guidance from the state regarding Governor Newsom’s order incorporates some (not all) aspects of the county orders. Businesses wishing to continue operations as an essential or critical business are strongly encouraged to assess their operations under both the state and county orders, and to consult counsel for guidance.