What Employers Need to Know About the Latest COVID-19-Related Orders

This week, federal, state and local governments issued broader and more strict shelter-in-place orders, expanded (in Los Angeles County) the covered employers who must provide paid sick leave, and provided additional guidance regarding federal paid family and sick leave to mitigate the impact of the COVID-19 pandemic. Please see below for our roundup of the latest guidance for employers.

Extended Bay Area County Shelter-in-Place Orders

Six Bay Area counties (Alameda, Contra Costa, Marin, Santa Clara, San Francisco and San Mateo) and the City of Berkeley issued identical updated orders, effective as of 11:59 pm on March 31, 2020. These orders supersede and strengthen the prior county shelter-in-place orders and extend shelter-in-place through 11:59 p.m. on May 3, 2020.

The updated orders are more restrictive than the original orders in several significant respects.

  • Social distancing requirements—both in connection with work/telework and otherwise—are mandatory. Unless strict compliance is explicitly waived, everyone must comply with the social distancing requirements at all times.
  • Essential businesses, i.e. those permitted to continue essential operations, must maximize the number of employees who work from home, excepting only those employees who cannot perform their job duties from home, and must scale down operations to their essential business component only.
  • Before 11:59 p.m. on April 2, 2020, essential businesses must complete, post, implement and comply with a written social distancing protocol—substantially in the form provided by the orders—for each facility that remains open. A copy of the protocol must be provided to each employee performing work at the facility.
  • The updated orders do not specifically compel employers to temperature screen employees who continue to report to work. However, they require employers to take additional social distancing measures as necessary as set forth in Centers for Disease Control and Prevention guidance, which recognizes, among other things, temperature screening as a potential mitigation activity for workplaces. Further, both the Equal Employment Opportunity Commission and California’s Department of Fair Employment and Housing have issued guidance to the effect that such temperature checks are permissible and non-discriminatory in this context, when conducted on all personnel entering a facility.
  • Essential businesses must also follow industry-specific guidance issued by the county health officer related to COVID-19.
  • Businesses that supply essential businesses with the support or supplies necessary to operate can continue to keep their facilities open, but only to the extent that they support or supply essential businesses.
  • Businesses that supply products needed for people to work from home are no longer essential businesses under the orders and must cease operations (except minimum basic operations) at facilities in the counties.
  • Most construction—residential and commercial—is prohibited, except for health care facility construction directly related to the COVID-19 response and some other limited exceptions.
  • Child care facilities may only provide care to children or dependents of individuals working for essential businesses, providing essential governmental functions or performing minimum basic operations for non-essential businesses.

Notably, the updated orders clarify that they are issued in accordance with, and they incorporate, the California statewide shelter-in-place order, i.e. one does not supercede or replace the other.

Los Angeles Expected to Require Large Employers to Offer Supplemental Paid Sick Leave

The Los Angeles City Council recently passed an ordinance that would require large employers to offer additional sick leave to employees who work in the city. The ordinance awaits the signature of Mayor Eric Garcetti, who is expected to sign no later than April 7, 2020, effecting the ordinance immediately thereafter.

Covered Employers

Notably, while the federal Families First Coronavirus Response Act (FFCRA) focused on employers with fewer than 500 employees, the Los Angeles Supplemental Paid Sick Leave ordinance would only apply to employers with 500 or more employees nationwide.

Covered Employees

The ordinance requires covered employers to provide supplemental paid sick leave to most employees who were employed from February 3, 2020 through March 4, 2020; however, employers are not required to provide such leave to health care providers and first responders.

Amount of Supplemental Paid Sick Leave

If an employee works 40 hours per week or is otherwise classified as a full-time employee by the employer, then the employee must receive 80 hours of supplemental paid sick leave. If an employee is classified as a part-time employee and works fewer than 40 hours per week, then the employer must provide supplemental paid sick leave that is “no greater than the Employee’s average two week pay over the period of February 3, 2020 through March 4, 2020.”

Covered Reasons for Supplemental Paid Sick Leave

Employers must allow employees to use supplemental paid sick leave when taking time off work because:

  • A public health official or health care provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19
  • The employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease or weakened immune system
  • The employee needs to care for a family member who is not sick but who public health officials or health care providers have required or recommended isolation or self-quarantine
  • The employee needs to provide care for a family member whose senior care provider or whose school or child care provider temporarily ceases operations in response to a public health or other public official’s recommendation

Employers are prohibited from requiring employees to support a supplemental paid sick leave request with a doctor’s note.

Coordination With Other Sick Leave Requirements

California and Los Angeles already require employers to provide paid sick leave to most employees. The new ordinance specifies that the supplemental paid sick leave required by the ordinance is in addition to employees’ existing state and city paid sick leave rights. However, if an employer provided an employee with paid sick leave on or after March 4, 2020, for any of the covered reasons above, it can offset that paid sick leave against the above 80-hour supplemental leave requirement.

U.S. Labor Department FAQs Regarding FFCRA

As we previously reported, the Families First Coronavirus Response Act (FFCRA) provides Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFML) for qualifying reasons related to COVID-19.

The U.S. Department of Labor has issued several interpretive FAQs regarding various aspects of the FFCRA, which it has periodically updated.

The FAQs clarify and otherwise address several complex aspects of the FFCRA, including:

  • How to consider and calculate the under 500-employee threshold
  • How to calculate the amount of EPSL hours available to part-time employees
  • How to calculate the regular rate of pay for purposes of determining the payout for EPSL and EFML
  • The interplay between EPSL and EFML, when an eligible employee wants to use EPSL during the first two weeks of unpaid EFML
  • The availability of intermittent leave for EFML and how employers should consider such requests
  • Clarifying that employees are not eligible for EPSL or EFML if they are unable to work (or telework) because their worksite is closed or they are furloughed, or because work schedules are reduced
  • Interplay between EPSL and EFML and existing employer paid leave benefits
  • Employer requirement to continue health care benefits for EFML
  • How to calculate the amount of EFML available where an employee has used or is on FMLA during the 12-month period cap
  • Guidelines on the small business exception

Please reach out to a member of Fenwick’s Employment Practices Group if you would like additional information regarding these new orders and the impact they may have on your operations.

Fenwick continues to monitor and report on the ever-evolving employer developments regarding the COVID-19 epidemic and will post updates in the firm’s COVID-19 Resource Center.