California Employers – Know Your COVID-19 Obligations

Employers in California have new reporting obligations related to employee COVID-19 cases under California legislation AB 685. The purpose of AB 685 is to allow the state to more closely track COVID-19 cases in the workplace.

The new law goes into effect for California employees on January 1, 2021 and requires employers to provide written notice to all employees who worked at their worksite during an infectious period who may have had exposure to the virus. It also enhances the reporting requirements to local health authorities in the event there is an outbreak of COVID-19 at your worksite.

Required Notice to Employees and Employee Representatives

Under the new notice requirement, employers in California are required to take action within one business day of a “potential exposure” based on a positive diagnosis of COVID-19 by someone at the worksite. The notice must be provided in writing to all employees and any subcontractors who were at the worksite during the infectious period and may have potentially been exposed to COVID-19.  Written notice should also be provided to any employee representatives such as union representatives or attorneys.

The notice can be delivered in person or distributed via email or text message if the employee is anticipated to see the notification within one business day. The notice should be both in English and any other language that is understood by the majority of your employees.

Notices should include information related to any COVID-19 related benefits such as workers’ compensation benefits, COVID leave of absence such as that provided under the federal Families First Coronavirus Response Act (FFCRA), paid sick leave, etc. You should also include the company’s anti-discrimination, anti-harassment, and anti-retaliation policies. In addition, the notice should include details regarding the company’s protocols for disinfecting the worksite and the safety plan to prevent any further exposures per CDC guidelines.

 Required Reporting of a COVID-19 Outbreak at Your Worksite

If you have multiple COVID-19 positive cases at your worksite, you may be subject to new reporting requirements related to outbreaks at the worksite. Local public health authorities determine the number of positive COVID-19 cases are considered an outbreak. Upon learning of the outbreak, employers are required to report the required information to their local public health agency within 48 hours.

In the event of a COVID-19 related fatality, California employers are required to notify their local health department of the name, number, occupation, and worksite location of any employees who have died due to COVID-19 exposure.

Employers are encouraged to create an action plan for their company and worksites related to COVID-19. You should identify the risks of COVID-19 exposure at your worksite(s) and decide how you will act to prevent exposure (looking at things such as improved ventilation, providing personal protective equipment such as masks or face shields, requiring social distancing when possible, etc).

Return to School and Emergency FMLA Leave

Due to the worldwide pandemic, this fall many schools are operating differently than they have in previous years with some schools operating fully in person, some fully remote, some a combination of the two, and some giving parents the choice between in person and remote learning. Employers may need to provide flexibility to their employees who have school aged children based on the operations of their child(ren)’s school.

Employers with less than 500 employees may be required to provide employees with up to 12 weeks of leave to care for their child in the form of emergency FMLA now required under the federal Families First Coronavirus Response Act (FFCRA).  This emergency FMLA requires covered employers to provide employees with 2/3 of their regular pay for the duration of their leave (a maximum of 12 weeks). Note: This pay is reimbursed to employers in the form of a payroll tax credit. More details about the FFCRA are available here: Families First Coronavirus Response Act.

The Department of Labor (DOL) has recently provided some clarification as to when the emergency FMLA leave under the FFCRA applies based on the way an employee’s child’s school is operating.

Schools Operating Completely In Person

When schools are operating with full time in person instruction, parent employees are not eligible for any emergency FMLA under the FFCRA for childcare reasons.

Schools Operating In A Full Virtual Setting

When schools are operating completely virtually/remotely with no in person instruction, an employee may be eligible for emergency FMLA leave and up to 2/3 of their regular pay for up to 12 weeks (or until the child can return to in person schooling).

Schools Operating In a Hybrid Model (Part In Person / Part Virtual Learning)

When schools are operating in a hybrid model where students report in person for learning some days and other days do remote learning, employees are only eligible for emergency FMLA leave on the days that the child is required to do remote learning and is unable to physically attend school for face to face instruction. On the days the employee is physically in school, the employee should be able to work as scheduled.

Schools Offering Parent Choice Between In Person and Virtual Learning

When schools are allowing parents to chose whether they send their children to school for in person instruction or keep them home for virtual or remote learning, an employee would not be eligible for emergency FMLA leave regardless of which option they choose for their student. This is because the school is “open” for in person learning and therefore the employee’s child (or children) has the opportunity to attend school in person so that the employee can return to work.

There may be an exception to this under the regular FMLA (for companies with 50 or more employees) if a child has a health condition that would require them to not attend school and would require the employee/parent to stay home to care for the child. This would not be covered under the FFCRA however and would not require the employee to be paid for this time off.

Combined Limits

The FFCRA was passed in March, so some employees may have already used some or all of their 12 week allowance. For example, if an employee took 6 weeks off in the spring to care for their child (or children) who’s school closed due to COVID-19, they would only have 6 more weeks available now.

Documentation

Employers should have employees sign a statement confirming that their child does not have an option to attend in person schooling and therefore the employee is unable to work because no other childcare options exist due to the school closure.

New Department of Labor FAQs Related to COVID-19 and Federal Labor Laws

The U.S. Department of Labor (DOL) recently issued more guidance for employers and workers related to rights and responsibilities under federal leave and wage and hour laws related to the current COVID-19 pandemic.

Updates were made to guidance for the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA). Highlights of the updates are included below. Continue reading