What the FFCRA, CARES Act, California’s Shelter-in-Place Orders and Other Relief Measures Mean for California Employers

07.06.2020
Nossaman eAlert
Originally published on 03.26.2020 | What California Shelter-in-Place and Other Orders Mean for California Employers

Latest update on 07.08.2020 at 12:45 p.m. PT

Emergency declarations including a California state-wide stay at home orderand a variety of executive and health orders issued from federal, state, county, and city authorities in response to COVID-19 have temporarily changed or suspended a number of requirements for California employers. Sick leave regulations have been altered, paid leave laws are being considered at various levels of government, and the California WARN Act requirements have been relaxed. Additionally, a number of wage and hour, leave, and discrimination issues have arisen as companies adjust to telecommuting, social distancing, quarantine, and shelter-in-place practices implemented in their own businesses as well as the businesses of their suppliers and customers.

Our attorneys are monitoring the legal development associated with public authorities’ response to COVID-19 and its spread, and are ready to provide advice and counsel to clients struggling to navigate the rapidly changing landscape. If you have any questions about employment related issues connected with the public response to COVID-19, please contact us.

Novel Coronavirus 2019 (COVID-19) Quick Reference Guide

The following official resources will help employers stay up to date on the rapidly unfolding COVID-19 pandemic and its implications in the workplace.  This Quick Reference Guide is updated frequently.

Federal and State Public Health Resources & Guidance
Federal Employment Law Resources & Guidance
State and Local Employment Law Resources & Guidance

Federal and State Public Health Resources & Guidance

Federal

State (California)

  • California-specific public health orders, resources, and updates on the COVID-19 pandemic are available on the dedicatedCoronavirus (COVID-19) in California website. Further information on the stay-at-home order can be found here.
  • On March 19, 2020, Governor Newsom issued a statewide stay-at-home order to combat the spread of COVID-19. Under the Governor’s executive order, California residents must now obey directives issued by California’s Department of Public Health, including an order to stay home except as needed to maintain continuity of operations of the federal critical infrastructure sectors. The order takes effect immediately, and will remain in place until further notice.
    • The ability to monitor and protect our communities through testing, contact tracing, isolating, and supporting those who are positive or exposed;
    • The ability to prevent infection in people who are at risk for more severe COVID-19;
    • The ability of the hospital and health systems to handle surges;
    • The ability to develop therapeutics to meet the demand;
    • The ability for businesses, schools, and child care facilities to support physical distancing; and
    • The ability to determine when to reinstitute certain measures, such as the stay-at-home orders, if necessary.
    • The State Public Health Officer has issued guidance clarifying which industries are critical.
    • The U.S. Cybersecurity & Infrastructure Security Agency (“CISA”) offers a detailed overview of the 16 critical infrastructure sectors.
    • The CISA memorandum referenced in California’s statewide stay-at-home order contains identifies industries in 14 critical infrastructure sectors, some of which are not listed on the CISA website. Employers should work with counsel to determine whether they may keep their operations open.
    • On March 21, 2020, Governor Newsom issued Executive Order N-35-20, which addresses a host of issues impacting public agencies, health care, and statutory deadlines for filing specified claims.
    • On April 14, 2020, Governor Newsom announced that decisions to modify or lift the statewide stay-at-home order will be guided by six key indicators:
    • On May 4, 2020, Governor Newsom announced that California is on-schedule on our Reopening Roadmap Report Card and we will begin to move into Stage 2 on Friday, May 8. Guidelines for businesses will be released later this week.
    • On May 22, 2020, Governor Newsom launched California Connect, the state’s comprehensive contact tracing program and public awareness campaign.  As part of California Connected, public health workers from communities across the state will connect with individuals who test positive for COVID-19 and work with them, and people they have been in close contact with, to ensure they have access to confidential testing, as well as medical care and other services to help prevent the spread of the virus.

Local (California)

Employers should work with counsel to ensure they are meeting their statutory and regulatory obligations under the laws touched upon in this Quick Reference Guide.


Federal Employment Law Resources & Guidance

  • The U.S. Department of Labor (“DOL”) has a Coronavirus Resources webpage to help employers and workers navigate workplace safety, wage and hour, leave, unemployment insurance, and other employment-related issues.
    • The DOL Wage and Hour Division provides answers to frequently asked questions about COVID-19 under the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).
    • On June 23, 2020, the DOL launched an interactive online tool to help workers determine if they qualify for paid sick leave or extended family and medical leave under the Families First Coronavirus Response Act (“FFCRA”).  The DOL will roll out an online tool for employers soon.
    •  On June 26, 2020, the DOL issued two Field Assistance Bulletins addressing the following:

      1. Field Assistance Bulletin 2020-3 clarifies how child labor laws under the FLSA apply to employment of children when schools are in session but physically closed due to COVID-19.
      2. Field Assistance Bulleting 2020-4 provides guidance on when an employee qualifies to take paid leave under the FFCRA to care for his or her child based on the closure of a summer camp, summer enrichment program, or other summer program for a COVID-19 related reason.
  • The Equal Employment Opportunity Commission (“EEOC”) has issued guidance considering the implications of the 2009 H1N1 flu pandemic on employer obligations under the Americans with Disabilities Act (“ADA”). According to the EEOC, this guidance is directly applicable to the novel coronavirus outbreak.
    • On March 27, 2020, the EEOC published a recorded webinar supplementing the EEOC’s existing publications: What You Should Know About the ADA, the Rehabilitation Act, and COVID-19 and Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. The EEOC used a Q and A format to address 22 common questions from employers covering a broad range of topics related to the application of the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, and the Genetic Information Nondiscrimination Act (“GINA”), in light of the COVID-19 pandemic. Q&A included the following topics: Permissible COVID-19 Inquires of Employees Reporting to Work, Confidentiality and Disclosure of Diagnosis to Co-Workers At-Risk Individuals and Reasonable Accommodations, and Reasonable Accommodations to Employees Working from Home.
    • On April 9, 2020, the EEOC updated its COVID-19 technical assistance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The publication provides guidance in a Q&A-style format on the following topics: disability-related inquiries and medical exams, confidentiality and medical information, hiring and onboarding, reasonable accommodation, pandemic-related harassment and discrimination, and furloughs and layoffs. Updated Q&As are date-stamped and appear in bold.
    • On April 17, 2020, the EEOC published another round of updates to its COVID-19 technical assistance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The updated Q&As address issues arising from reopening the workplace, including reasonable accommodation obligations, health screenings, and harassment and discrimination practices.
    • On April 23, 2020, the EEOC updated its technical assistance publication with guidance on testing and medical exams in the workplace. Notably, the publication states that “an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus,” but employers must ensure that tests are “accurate and reliable.”
    • On May 7, 2020, the EEOC updated its technical assistance publication to provide information about the accommodation of employees with underlying medical conditions.
    • On May 7, 2020, the EEOC announced that it will delay the anticipated opening of the 2019 EEO-1 Component 1 data collection and the 2020 EEO-3 and EEO-5 data collections because of the COVID-19 pandemic.
    • On June 11, 2020, the EEOC updated and expanded its technical assistance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.  The updated publication provides guidance on several issues employers may face in returning their employees to work.
    • On June 17, 2020, the EEOC updated its technical assistance publication and said that employers cannot mandate antibody tests before allowing people back to work.  The EEOC pointed to recent guidance by the Centers for Disease Control & Prevention that states in part that antibody tests should not be used to determine if someone is immune to the virus or as a basis for decisions about allowing workers back on the job.  Keep in mind that this is in contrast to viral testing of active COVID-19 cases, which the EEOC has acknowledged is permissible under the ADA.
  • The Occupational Safety and Health Administration (“OSHA”) offers employers and workers a wealth of information on theworkplace safety aspects of the COVID-19 pandemic.
    • On April 3, 2020, OSHA issued additional guidance addressing supply shortages of disposable N95 FFRs. The guidance outlines enforcement discretion to permit the use of FFRs and air-purifying elastometric respirators that are either: 1) Certified under specified standards of other countries or jurisdictions; or, 2) Where such respirators are not available, previously certified under the standards of other countries or jurisdictions but are beyond the manufacturer’s recommended shelf life (i.e., expired).
    • On April 7, 2020, OSHA uploaded a third quick safety tips video recommending the use of EPA-approved disinfectants to keep the workplace clean. All three videos are available here in English and in Spanish.
    • In particular, OSHA has issued Guidance on Preparing Workplaces for COVID-19.
    • Employers should also be aware of key OSHA standards that apply during this pandemic.
    • On April 3, 2020, OSHA issued interim guidance for enforcing the Respiratory Protection standard, 29 C.F.R. § 1910.134, and other health standards to help combat supply shortages of disposable N95 filtering facepiece respirators (“FFRs”).
    • On April 3, 2020, OSHA uploaded two video presentations offering quick tips on assessing and responding to workplace risks to combat the spread of COVID-19.
    • On April 6, 2020, OSHA published a new poster listing steps that can be taken at the workplace to reduce the risk of exposure to the novel coronavirus.
    • On April 8, 2020, OSHA expanded its temporary guidance for respirator fit-testing, which was previously only applicable to the healthcare industry, to all workplaces that require the use of respirators.
    • On April 8, 2020, OSHA published a press release reminding employers that it is illegal to retaliate against workers for reporting unsafe and unhealthful working conditions during the COVID-19 pandemic.
    • On April 9, 2020, OSHA issued guidance to keep retail workers safe during the COVID-19 pandemic.
    • On April 10, 2020, OSHA issued interim guidance on the enforcement of 29 CFR Part 1904, which requires employers to record cases of COVID-19 at the workplace under certain conditions. While employers in the healthcare industry, emergency response organizations, and correctional institutions must continue to record cases of COVID-19, OSHA will not enforce its record keeping requirement against employers in other industries, unless
      1. There is objective evidence that a COVID-19 case may be work-related, such as where there is an outbreak among workers who work closely together and there is no alternative explanation; and
      2. This evidence was reasonably available to the employer, including information provided by employees or uncovered in the ordinary course of business.
    • On April 13, 2020, OSHA announced an interim enforcement response plan for its Area Offices and Compliance Safety and Health Officers (CSHO) for handling coronavirus-related complaints, referrals, and severe illness reports. The plan outlines temporary procedures that provide flexibility and discretion to fulfill mission critical functions and protect workers while ensure the safety of OSHA personnel.
    • On April 13, 2020, OSHA issued guidance to keep package delivery workers safe during the COVID-19 pandemic.
    • On April 16, 2020, OSHA issued guidance to keep manufacturing industry workers safe during the COVID-19 pandemic.
    • On April 21, 2020, OSHA issued guidance to keep construction workers safe during the COVID-19 pandemic.
    • On April 26, 2020, OSHA and the CDC released a joint coronavirus-related interim guidance to protect workers in the meatpacking and processing industries.
      • On April 28, 2020, President Trump issued an executive order requiring meat and poultry processors to continue operations.
    • On May 4, 2020, OSHA translated and published its “Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus” poster in 11 additional languages.
    • On May 19, 2020, OSHA issued interim guidance on the enforcement of 29 CFR Part 1904, which requires employers to record and report cases of COVID-19 at the workplace under certain conditions. This guidance replaces the guidance OSHA released on April 10, 2020, tightening up the previously relaxed recording requirements. The guidance provides useful considerations for determining whether an employer’s decision not to record a COVID-19 illness is reasonable.
    • On May 19, 2020, OSHA announced a revised enforcement response plan for its Area Offices and Compliance Safety and Health Officers (CSHO) for handling coronavirus-related complaints, referrals, and severe illness reports. The plan replaces the interim enforcement response plan issued on April 13, 2020, and outlines circumstances under which on-site inspections may be resumed, among other topics.
    • On May 26, 2020, OSHA launched a webpage with coronavirus-related guidance for construction employers and workers, including recommended actions to reduce the risk of exposure to the coronavirus.
    • On June 1, 2020, OSHA issued a one-page alert providing guidance on social distancing at work. 
    • On June 2, 2020, OSHA and the CDC issued a joint coronavirus-related interim guidance for agricultural workers and employers.
    • On June 2, 2020, OSHA issued guidance to keep stockroom and loading dock workers safe during the COVID-19 pandemic.
    • On June 10, 2020, OSHA published a series of frequently asked questions and answers regarding the use of face coverings, surgical masks, and respirators in the workplace.
    • On June 18, 2020, OSHA issued comprehensive guidance for employers reopening non-essential businesses and for employees returning to work. 
    • [UPDATE] On July 7, 2020, OSHA released coronavirus-related guidance to reduce the risk of exposure for oil and gas workers.

  • On March 18, 2020, President Trump signed House Resolution 6201 into law. Among other things, HR 6201, known as the “Families First Coronavirus Response Act” (“FFCRA”), greatly expands the FMLA and creates a new federal paid sick leave law, both requiring covered employers to provide employees with paid leave due to the COVID-19 pandemic. Stay tuned for Nossaman’s summary of this new law.
    • This guidance is just the first round of information and compliance assistance from the DOL’s Wage and Hour Division. A required workplace poster, additional fact sheets, and more Q & A’s will follow later in the week.
    • Please note that the FFCRA does not become effective until April 1, 2020.
    • Employers should take note that the DOL’s interpretation of the FFCRA does not necessarily correspond to a plain reading of the text, warranting a closer look at the DOL’s guidance. For example, in response to questions 58 and 59, the DOL states that the small business exemption to the EPSLA and EFMLEA applies only to paid leave taken “due to school or place of care closures or child care provider unavailability for COVID-19 related reasons.” However, this limitation is not readily apparent in the text of the FFCRA, creating a potential pitfall for counsel and employers.
    • On March 24, 2020, the DOL published guidance on the FFCRA in the form of a Fact Sheet for Employers, a Fact Sheet for Employees, and a Question and Answers. The guidance clarifies that the FFCRA takes effect on April 1, 2020.
    • On March 24, 2020, the DOL issued Field Assistance Bulletin No. 2020-1, announcing that it will not bring enforcement actions under the FFCRA during the period of March 18, 2020, to April 17, 2020, provided that employers are taking reasonable, good faith steps to comply with the FFCRA.
    • On March 25, 2020, the DOL published model FFCRA workplace posters for federal employers and for all other covered employers. Frequently Asked Questions and Answers on the notice posting requirement are now available.
    • On March 26, the DOL issued a second round of Questions and Answers relating to required documentation, incremental use of leave, and payments under the FFCRA, as well as the relationship between the FFCRA and reductions in hours, furloughs, and layoffs.
    • March 27, 2020, the U.S. Treasury Department, Internal Revenue Service and the U.S. Department of Laborannounced that small and midsize employers can begin taking advantage of two new refundable payroll tax credits, designed to immediately and fully reimburse them, dollar-for-dollar, for the cost of providing Coronavirus-related leave to their employees.
    • On March 30, 2020, the DOL issued a third round of Questions and Answers addressing the definition of a “health care provider,” the scope of the small business exemption to the FFCRA’s Emergency Paid Sick Leave Act (“EPSLA”) and Emergency Family Medical Leave and Expansion Act (“EFMLEA”), and whether public sector employees are entitled to leave under the EPSLA and EFMLEA. Every Question and Answer that the DOL has issued to date is available on the DOL’s FFCRA Question and Answers
    • On March 31, 2020, the IRS issued guidance on the payroll tax credits under the FFCR available to small and midsize employers to reimburse them for the cost of providing paid sick and family leave wages to their employees related to COVID-19.
    • On April 1, 2020, the DOL announced new action regarding how American workers and employers will benefit from the protections and relief offered by the EPSLA and EFMLEA. The DOL’s Wage and Hour Division (WHD) posted atemporary rule issuing regulations pursuant to the FFCRA. The temporary rule is effective from April 1, 2020 through December 31, 2020. [Caveat: This temporary rule is currently pending placement on public inspection at the OFR and publication in the Federal Register. This version of the temporary rule may vary slightly from the published document if minor technical or formatting changes are made during the OFR review process. Only the version published in the Federal Register is the official temporary rule.] This temporary rule provides: (1) rules relevant to the administration of the FFCRA’s paid leave requirements; (2) direction for administration of the EPSLA; and (3) direction for the effective administration of the EFMLEA.
    • On April 1 2020 the DOL issued formal regulations implementing the FFCRA (“Act”), which took effect on April 1. The regulations provide a substantial amount of information, provide clarification to the Act, and at times differ from the guidance recently issued by the DOL.  All should be reviewed carefully.
    • On April 1, 2020, Members of Congress sent a letter to the Secretary of the Department of Labor stating the following: “We write you to raise deep concerns with materials issued by the Department of Labor (DOL) interpreting the paid sick and family leave provisions of the Families First Coronavirus Response Act (FFCRA) and request you revise them immediately. Several of the statements put forth in the document, labeled ‘Questions and Answers,’ contradict the plain language of the FFCRA and violate congressional intent.” The letter outlines several proposed changes to the guidance.
    • On April 2, 2020, the DOL announced new guidance on unemployment insurance for states in response to the COVID-19 crisis. The new guidance helps states implement new legislation to expand unemployment insurance coverage for all workers, including those who are normally not eligible for unemployment benefits—gig workers, self-employed workers, and individuals seeking part-time work.
    • On April 2, 2020, the DOL pushed out a webpage offering further information on claiming unemployment insurance relief during the COVID-19 pandemic. The webpage aggregates official guidance, fact sheets, frequently asked questions, news releases, and contact information for employment insurance offices in each U.S. state and territory.
    • On April 3, 2020, the DOL Wage and Hour Division hosted a webinar on the FFCRA explaining which employers and employees are covered by the EPSLA and EFMLEA, and the benefits and protections available under these laws. The webinar and the webinar slides are available on-demand.
    • The DOL will accept comments and suggestions from employers and employees on administration of the FFCRA until April 10, 2020. The ideas and comments gathered from this online dialogue will be used to develop compliance assistance guidance, resources, and tools, and outreach approaches that assist employers and employees in understanding their responsibilities and rights, respectively, under the FFCRA.
    • On April 6, 2020, the DOL’s temporary rule concerning the paid leave provisions of the FFCRA was published in the Federal Register at 85 FR 19326. These temporary regulations are substantively identical to the unpublished temporary regulations that were made available on April 1, 2020; only slight technical and stylistic changes were made.
    • On April 6, 2020, the DOL issued a fourth round of Questions and Answers, which added Q&A Nos. 60-79 and revised previously issued Q&As. These changes highlight the importance of reviewing the most recent version of the DOL’s guidance in attempting to comply with the FFCRA’s paid leave provisions.
    • On April 9, 2020, the DOL proposed corrections to its recently published FFCRA regulations, which contained an incorrect calculation of hours worked (page 19329), a paragraph within the preamble describing regulatory text that was erroneously included (page 19338), incorrect cross references (§§ 826.20, 826.22, and 826.100(d)), and other minor errors. The DOL’s corrections are scheduled to be published in the Federal Register on April 10, 2020.
  • CARES Act: On March 25, 2020, the U.S. Senate passed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), which provides over 2 trillion dollars for public health spending to confront the COVID-19 pandemic, immediate cash relief and unemployment benefits for individuals, small business loan programs, state and local government assistance, and targeted relief for certain industries.
    • On March 31, 2020, the Treasury Department issued two sets of guidance on the paycheck protection program (“PPP”) under the CARES Act. The Small Business Association (“SBA”) also released guidance on the PPP and other programs for small businesses under the CARES Act. There are multiple links within each linked guidance with additional information and forms regarding PPP loans.
    • Small Business Owners and others interested in the PPP and Economic Injury Disaster Loan (“EIDL”) programs made available under CARES Act should check in on their local SBA District Office’s website for location-specific resources and guidance. For example, the Orange County/Inland Empire District Office is hosting webinar sessions to answer questions about these programs. The District Office’s “Updates” webpage indicates that these webinars will be available twice daily throughout the week of April 6, 2020.
    • On April 9, 2020, the Federal Reserve announced it would provide up to an additional $2.3 trillion in loans by setting up new loan programs and bolstering existing loan programs, including the PPP. The Federal Reserve’s actions include supplying liquidity to financial institutions participating in the PPP, offering up to $500 billion in lending to states and municipalities with support from funds appropriated by the CARES Act, and establishing a $600 billion “Main Street Lending Program” which will offer 4-year loans, with one year of deferred principal and interest payments, to companies with up to 10,000 workers or with revenues of less than $2.5 billion. Many of the conditions and restrictions applicable to direct loan programs under the CARES Act will also apply to companies participating in the Main Street Lending Program.
    • On April 10, 2020, the SBA filed an interim final rule outlining the key provisions of SBA’s implementation of the PPP provisions within the CARES Act. The interim final rule is schedule to be filed in the Federal Register on April 15, 2020.
    • Also on April 10, 2020, the SBA filed an interim final rule with additional guidance regarding the application of certain “affiliate rules” relating to the SBA’s implementation of the PPP. This interim final rule is scheduled to be published on April 15, 2020.
      • SBA Affiliate Rules: In most cases, a borrower will be considered together with its affiliates for purposes of determining eligibility for the PPP, subject to an exception for “faith-based organizations” as set forth in the interim final rule.
    • On April 15, 2020, the SBA updated its PPP guidance. The guidance provides answers to frequently asked questions about PPP loans, and is updated regularly.  
    • On April 17, 2020, the SBA updated its PPP guidance with answers to questions concerning whether lenders can accept electronic documents as permitted under the E-Sign Act (Pub. L. 106-229) and whether lenders can sell PPP loans into the secondary market.
    • On April 20, 2020, the SBA published an interim final rule providing guidance for individuals with self-employment income who filed a Form 1040, Schedule C. This rule also addresses eligibility issues for certain business concerns and requirements for certain pledges of PPP loans.
    • On April 23, 2020, Congress passed the Paycheck Protection Program and Health Care Enhancement Act (H.R. 266) in response to the COVID-19 pandemic. The President has said that he will sign the legislation into law. H.R. 266 will provide an additional:
        1. $310 billion to the PPP, with $60 billion set-aside for loans issued by smaller lenders;
        2. $10 billion for EIDL grants and an additional $50 billion for loans;
        3. $75 billion to the Department of Health and Human Services Public Health and Social Services Emergency Fund for health care providers and COVID-19 response; and
        4. $25 billion to the Public Health and Social Services Emergency Fund for COVID-19 testing.
      • On April 26, 2020, the SBA updated its PPP guidance to clarify that although all employees, including part-time employees, must be included in determining eligibility, only full-time employees are considered in calculating loan forgiveness.
      • On April 28, 2020, the SBA updated its PPP guidance to clarify that businesses owned by private companies and business owned by public companies may apply for PPP loans only if they can certify in good faith that the PPP loan is necessary to support ongoing operations in light of current economic uncertainty.
      • On April 27, 2020, the SBA filed an interim final rule supplementing previously posted interim final rules with additional guidance regarding promissory notes, authorizations, affiliation, and eligibility under the CARES Act.
      • On April 27, 2020, the Treasury Department filed an interim final rule authorizing all lenders eligible to originate loans under the PPP to use an alternative criterion for calculating the maximum loan amount for PPP loans issued to seasonal employers.
      • On April 29, 2020, the SBA filed an interim final rule clarifying lender requirements for disbursements of PPP loans.
      • On May 4, 2020, the SBA updated its PPP guidance on the PPP, including a clarification that PPP loan forgiveness will not be reduced where an employee is laid off, and subsequently refuses an offer to return to his or her position.  
      • On May 5 and 6, 2020, the SBA updated its PPP guidance on the PPP to advise borrowers that the repayment safe-harbor date has automatically been extended from May 7 to May 14, 2020.  Business that repay their loans by that date will be deemed by the SBA to have made the required certification of need (on the Borrower Application Form) in good faith, and are also eligible for the Employee Retention Credit.  The SBA also clarified PPP applicants must count all employees, both foreign and domestic, for purposes of the 500-employee limit for loan eligibility.
      • On May 5, 2020, the SBA filed an interim final rule addressing nondiscrimination obligations and additional eligibility criteria.
      • On May 11, 2020, the SBA filed an interim final rule extending the date by which certain Paycheck Protection Program borrowers may repay their loans from May 7, 2020 to May 14, 2020, in order to avail themselves of a safe harbor with respect to a certification required by the Act, and makes other conforming changes.
        • On May 13, 2020, the SBA withdrew this interim final rule, and filed a new interim final rule extending the safe harbor for returning PPP loans from May 14 to May 18, 2020. This interim final rule is scheduled to be published on May 19, 2020.
      • On May 13, 2020, the SBA updated its PPP guidance with guidance as to how the SBA will review borrowers’ good-faith certifications of need. The updated FAQ also notes that the repayment safe harbor has been automatically extended to May 18, 2020.
      • On May 13, 2020, the SBA filed an interim final rule providing guidance on lenders’ ability to increase PPP loans to partnerships or seasonal employers under specified circumstances.
      • On May 13, 2020, the SBA filed an interim final rule providing guidance on lenders’ ability to increase PPP loans to partnerships or seasonal employers under specified circumstances. This interim final rule is scheduled to be published May 19, 2020.
      • On May 15, 2020, the SBA released the PPP Loan Forgiveness Application form for borrowers.
      • On May 18, 2020, the SBA filed an interim final rule supplementing previously published guidance regarding eligibility requirements related to entities with foreign affiliates. This interim final rule is scheduled to be published May 21, 2020.
      • On May 19, 2020, the SBA updated its PPP guidance to clarify that the deadline for lenders to complete the initial SBA Form 1502 reporting process is the later of May 29, 2020, or 10 calendar days after disbursement or cancellation of a PPP loan.
      • On May 20, 2020, the SBA filed an interim final revising the interim final rule posted on May 8, 2020, by extending the date by which certain PPP borrowers may repay their loans from May 14, 2020 to May 18, 2020, in order to avail themselves of a certification safe harbor, and by extending the timeframe for submission of the initial SBA Form 1502 report for PPP loans to the later of May 29, 2020 or 10 calendar days after disbursement or cancellation of a PPP loan.
      • On May 22, 2020, the SBA filed an interim final rule to help PPP borrowers prepare and submit loan forgiveness applications as provided for in the CARES Act, help PPP lenders who will be making the loan forgiveness decisions, and inform borrowers and lenders of SBA’s process for reviewing PPP loan applications.
      • On May 22, 2020, the SBA filed an interim final rule to inform borrowers and lenders of SBA’s process for reviewing PPP loan applications and loan forgiveness applications.
      • On May 28, 2020, the SBA and Treasury Department announced that $10 billion will be set aside for Round 2 PPP funding, which will be lent exclusively Community Development Financial Institutions (“CDFIs”).  CDFIs work to expand economic opportunity in low-income communities by providing access to financial products and services for local residents and businesses.
    • Paycheck Protection Program Flexibility Act
      • Are self-employed or have no employees;
      • Did not reduce employee wages by more than 25% and did not reduce the number or hours of their employees; or,
      • Experienced reductions in business activities as a result of COVID-19 directives and did not reduce the wages of their employees by more than 25%.
      • On June 5, 2020, the President signed into law the Paycheck Protection Program Flexibility Act of 2020(“PPPFA”). This PPPFA loosens the strict requirements on how employers may spend PPP funds to obtain loan forgiveness.  For example, the PPPFA reduces the percentage of the loan that must be used on payroll expenses from 75% to 60%, provides borrowers with the option to extend the period during which they must spend loan proceeds from eight weeks to twenty four weeks (addressing the needs of businesses that have been unable to reopen), removes the requirement that borrowers make payments while awaiting a loan forgiveness decision, and permits borrowers to defer payroll taxes, among other provisions. 
      • On June 12, 2020, the SBA issued an interim final rule implementing the PPPFA and expanding eligibility for businesses with owners who have past felony convictions.  The SBA also updated its borrower and lenderapplication forms in conformity with the PPPFA.
      • On June 16, 2020, the SBA revised its Loan Forgiveness Application and Instructions for borrowers in conformity with the PPPFA.  The SBA also released a new EZ PPP Loan Forgiveness Application and Instructions to streamline the process for borrowers who:
      • On June 17, 2020, the SBA issued an interim final rule revising the third and sixth interim final rule posted on the SBA’s website on April 14, 2020 and April 28, 2020, by changing provision to conform to the PPPFA.  Several of these amendments are retroactive to the date of the enactment of the CARES Act.
      • On June 19, 2020, the SBA issued a Procedural Notice to provide guidance for when PPP loan proceeds must be used for loans received under the SBA EIDL program.
      • On June 22, 2020, the SBA issued an interim final rule revising interim final rules posted on the SBA’s website on May 22, 2020, by changing key provisions to conform to the PPPFA. Several of these amendments are retroactive to the date of the enactment of the CARES Act.
      • On June 24, 2020, the SBA revised its borrower and lender application forms.

      •  On June 25, 2020, the SBA issued an interim final rule supplementing previously posted interim final rules by providing additional guidance on eligible payroll costs that may be submitted on PPP loan applications by certain fishing boat owners or operators. 

      • On June 25, 2020, the SBA updated its PPP guidance to explain that PPP loans received before June 5, 2020 (i.e., enactment of the PPPFA) have a maturity rate of two years, while PPP loans received after June 5, 2020, have a five-year maturity date.  A borrower and lender may mutually agree to extend the term of a PPP loan from two years to five years for loans received before June 5, 2020.

      • On June 26, 2020, the SBA issued guidance to assist businesses in calculating their payroll costs for purposes of determining maximum loan amounts that the business may apply for under the PPP.

      • [UPDATE] On July 4, 2020, President Trump signed S. 4116 into law, which (1) reauthorizes lending under the PPP through August 8, 2020; and (2) separates the authorized limits for commitments under the PPP from other SBA loan programs.

    • Unemployment Insurance Programs Under CARES Act
      • UIPL Letter No. 14-20 provides a helpful overview of the unemployment benefit programs provided by the CARES Act.
      • The FPUC provides an additional $600 per week to individuals who are collecting regular unemployment compensation, Pandemic Emergency Unemployment Compensation, Pandemic Unemployment Assistance, Extended Benefits, Short-Time Compensation/Work Sharing, Trade Readjustment Allowances, Disaster Unemployment Assistance, and/or Self-Employment Assistance.  Benefits under the FPUC are available through July 31, 2020.
      • PUA provides unemployment benefits to individuals who are not eligible for unemployment benefits under state or federal law, including individuals who have exhausted all rights to such benefits, are self-employed, are seeking part-time employment, lack sufficient work history, are independent contractors, or are gig workers.
      • In lieu of the maximum unemployment benefits under state law (usually 26 weeks) and the unemployment benefits payable through the Pandemic Emergency Unemployment Compensation (13 weeks), PUA provides otherwise ineligible individuals with up to 39 weeks of unemployment benefits.
      • PEUC provides eligible individuals with up to 13 additional weeks of unemployment benefits to individuals who have exhausted their regular unemployment compensation entitlement.
      • This guidance clarifies that the payment of state extended benefits (“EB”) under state unemployment insurance programs (e.g., “extended duration awards” in California) must be deferred until after the individual has exhaust his or PEUC entitlement. UIPL 14-20 offers further guidance on the coordination of federal and state unemployment insurance programs.
      • Generally, the order in which an unemployed individual becomes entitled to federal and state unemployment insurance programs is as follows:
        • In California, there are multiple scenarios that trigger extended duration awards, including where the unemployment rate reaches or exceeds 6 percent. (See Ins. Code, § 4003.) Extended duration awards are available for up to 13 weeks, subject to conditions relating to California’s insured unemployment rate and federal authorization.
        • Note that individuals receiving any of the above benefits may be entitled to FPUC, which provides an additional $600 per week, through July 31, 2020.
        1. Regular state unemployment compensation (“UC”), which is provided for up to 26 weeks in California;
        2. Once UC is exhausted, the individual may then be eligible for PEUC for a maximum of 13 weeks;
        3. Once PEUC is exhausted, the individual may be entitled to EB if the state’s extended program has been triggered under the Federal-State Extended Unemployment Compensation Act of 1970 and applicable state law.
        4. If EB is not available, either because the state did not trigger on to EB or because the individual exhausted his EB entitlement, the individual may be eligible to receive PUA. These benefits are available for a maximum of 39 weeks, minus any weeks that the individual received UC and/or EB. The receipt of PEUC does not affect an individual’s PUA benefits.
      • On April 27, 2020, the DOL published UIPL 16-20 Change 1 to address questions about the PUA program’s operations and to provide further guidance.
      • On April 27, 2020, the DOL published UIPL 18-20 to provide states with instructions for implementing the emergency unemployment relief for state and local governmental entities, certain non-profit organizations, and Federally-recognized Indian Tribes in Section 2103 of the CARES Act.
      • On April 29, 2020, the DOL published UIPL 19-20 to provide state workforce agencies guidelines and key dates for the completion of the 2020 Unemployment Insurance Benefit Accuracy Measurement (“BAM”) paid and denied claims sample cases and the publication of 2020 BAM data.
      • On April 30, 2020, the DOL published UIPL 20-20 to provide states with operating, financial, and reporting instructions for the full federal funding of the first week of unemployment compensation authorized by section 2105 of the CARES Act.
      • On May 3, 2020, the DOL published UIPL 21-20 to provide states with an overview of the Short-Term Compensation (“STC”) provisions within the CARES Act, and to provide guidance regarding 100 percent federal reimbursement of certain state STC payments.
      • On March 27, 2020, the House Committee on Ways & Means issued guidance and a FAQ on the provisions related to unemployment compensation in the Senate-passed CARES Act. The Committee has also issued aFAQ relating to the financial assistance made available to individual under the CARES Act.
      • On April 2, 2020, the DOL released Unemployment Insurance Program Letter (“UIPL”) No. 14-20, which provides states with a summary of the unemployment insurance provisions within the CARES Act.
      • On April 4, 2020, the DOL released UIPL No. 15-20, which provides states with operating, financial and reporting instructions for the Federal Pandemic Unemployment Insurance Program (“FPUC”) created by the CARES Act.
      • On April 5, 2020, the DOL released UIPL No. 16-20, which provides States with operating, financial and reporting instructions for the Federal Pandemic Unemployment Assistance (“PUA”) Program created by the CARES Act.
      • On April 10, 2020, the DOL released UIPL No. 17-20, which provides states with operating, financial and reporting instructions for the Pandemic Emergency Unemployment Compensation (“PEUC”) program created by the CARES Act.
          1. The STC program (also known as “work-sharing” in California) is a layoff aversion program in which an employer, under a state-approved plan, reduces the hours for a group of workers and these workers in turn receive a reduced unemployment benefit payment.
        • On May 9, 2020, the DOL published UIPL 15-20 Change 1, which answers 18 frequently asked questions regarding unemployment insurance program eligibility, payment frequency, and federal income tax liability, among other topics.
        • On May 10, 2020, the DOL published UIPL 22-20 to provide guidance on the process to apply for grants under Section 2110 of the CARES Act, which supports the Secretary of Labor’s commitment to provide resources and assistance during re-opening of businesses and help employers and workers avert layoffs.
        • On May 11, 2020, the DOL published UIPL 23-20 to provide states with guidance regarding required program integrity functions for state unemployment insurance programs. UIPL 23-20 also provides guidance regarding the required integrity functions for the PUA, FPUC, and PEUC unemployment insurance programs established by the CARES Act.
        • On May 14, 2020, the DOL published UIPL 24-20 to provide guidance relating to the federal-state extended benefits (EB) program and temporary changes to the program under the FFCRA and CARES Act. A Frequently asked questions about the temporary changes to EB programs are provided in an attachment to UIPL 24-20.
        • On May 19, 2020, the DOL issued a press release reiterating the obligations of employers, employees, and all workforce partners to protect the integrity of the unemployment insurance systems. To that end, the DOL has aggregated a list of all state unemployment insurance fraud hotlines, and asks that instances of fraud, waste, and abuse be submitted to the Department’s Office of the Inspector General.
        • On June 15 2020, the DOL published UIPL 25-20  to provide state workforce agencies with guidance on changes to the Benefit Accuracy Measurement (“BAM”) program as a result of issues arising from COVID-19.  The BAM is one of the most important tools to measure UI payment integrity. The large increase in UI workloads due to the CARES Act require changes to the BAM to ensure accurate and timely reporting of BAM data.
  • On May 15, 2020, the House passed the “Health and Economic Recovery Omnibus Emergency Solutions Act,” also known as the “HEROES Act,” which would authorize $3 trillion for another round of economic impact payments, an extension to the FPUC (which provides an additional $600 weekly federal unemployment benefit), federal hazard pay for essential workers, and $1 trillion to state and local governments, among other provisions. The HEROES Act kicks off congressional negotiations on a Phase 4 coronavirus bill.
  • On June 8, 2020, the Federal Reserve released guidance on its Main Street Lending Program, which was recently expandedto serve more small and medium-sized businesses.  The Federal Reserve lowered the minimum loan amount to $250,000; raised the maximum loan limit to $35 million for new loans, $50 million for priority loans, and $300 million for expanded loans; adjusted the principal repayment schedule to begin after two years; and extended the loan term to five years.

Employers should work with counsel to ensure they are meeting their statutory and regulatory obligations under the laws touched upon in this Quick Reference Guide.


State and Local Employment Law Resources & Guidance

State (California)

  • The Labor and Workforce Development Agency’s (“LWDA”) Coronavirus 2019 Resources for Employers and Workers is a good starting point for seeking guidance on employment issues arising from the novel coronavirus pandemic. The webpage aggregates official resources on California’s Paid Sick Leave laws, disability and unemployment insurance programs, workplace health and safety guidance, and other helpful information.
  • The Employment Development Department (“EDD”) has set up a webpage providing information about wage replacement programs, alternatives to layoffs, and resources for both employees and employers. The EDD also offers answers to frequently asked question about California’s wage replacement programs and resources for employers affected by the novel coronavirus pandemic. A helpful chart outlining the benefits that employees may be entitled to during this time is also available.
  • The Division of Labor Standards Enforcement (“DLSE”) has published answers to frequently asked questions regarding paid sick leave, school emergency leave, and compensation issues.
  • The Division of Occupational Health and Safety (Cal/OSHA) offers Guidance on Requirements to Protect Workers from Coronavirus and Interim Guidelines for General Industry on 2019 Novel Coronavirus Disease (COVID-19). Cal/OSHA also provides specific guidelines for health care employers and employees.
    • On May 14, 2020, Cal/OSHA updated its Interim General Guidance on Protecting Workers from COVID-19.  This new guidance identifies specific infection control measures that are mandatory for California employers to implement and include in their Injury and Illness Prevention Program (“IIPP”).  These changes are a significant departure from Cal/OSHA’s previous guidance on IIPP requirements, which essentially directed employers to CDC guidance. Thus, employers should amend their IIPP to include this to stay compliant.
    • On May 27, 2020, Cal/OSHA issued guidance placing additional COVID-19 recordkeeping and reporting requirements on employers.  These requirement differ in many respects from the federal OSHA recording and reporting requirements, most notably by imposing a presumption that a COVID-19 case is due to work-related exposure.
  • On March 17, 2020, Governor Newsom issued an executive order [Executive Order N-31-20] temporarily relaxing the California’s Worker Adjustment and Retraining Notification Act (“CalWARN Act”), which requires employers to give workers at least 60-days’ notice in advance of business closures and mass layoffs. Employers now must give employees "as much notice as is practicable" and provide "a brief statement of the basis for reducing the notification period." This order is in effect until California’s state of emergency is lifted.
    • California’s LWDA issued guidance regarding the Governor’s Executive Order N-31-20.
  • On April 16, 2020, Governor Newsom signed an executive order [Executive Order N-51-20] providing two weeks of supplemental paid sick leave to food supply chain workers who are not covered by the FFCRA. The order seeks extend the FFCRA’s paid sick leave benefits to food- and delivery-sector employees working for business with over 500 employees.
  • On May 6, 2020, Governor Newsom signed an executive order [Executive Order N-62-20] creating a rebuttable presumption of a compensable industrial injury for all essential workers who develop any COVID-19-related illness.
    • This is a substantial departure from existing Workers’ Compensation laws, under which airborne illnesses are not typically compensable unless the employee establishes that the employee’s risk of contracting the disease by virtue of the employment was materially greater than that of the general public.
  • On May 7, 2020, Governor Newsom announced that California will begin the reopening of some lower-risk workplaces in compliance with upcoming modifications to the statewide Stay-at-Home Order, set for May 8, 2020. However, before reopening, all businesses and facilities must:
    • Perform a detailed risk assessment and implement a site-specific protection plan
    • Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them
    • Implement individual control measures and screenings
    • Implement disinfecting protocols
    • Implement physical distancing guidelines
    • Post industry-specific checklists in the workplace to show customers and employees that business is open and the risk of exposure has been reduced
  • Cal/OSHA has published industry-specific checklists outlining how businesses and facilities are to complete the above-listed tasks. Links to all available industry checklists are provided below:
  • As of May 27, 2020, 40 counties have submitted variances attesting that they meet the requirements for increasing the pace at which they advance through Stage 2 of California's roadmap to modify the Stay-at-Home order. Businesses in these counties may begin opening as soon as industry-specific guidance is published:
    • Alpine County 
    • Amador County
    •  Butte County
    •  Calaveras County
    •  Colusa County
    • Contra Costa County [UPDATE 6/23]
    • Del Norte County [UPDATE 5/19]
    •  El Dorado County
    •  Fresno County [UPDATE 5/21]
    •  Glenn County
    •  Humboldt County
    •  Inyo County [UPDATE 5/19]
    •  Kern County [UPDATE 5/21]
    •  Kings County [UPDATE 5/21]
    •  Lake County [UPDATE 5/21]
    •  Lassen County
    • Los Angeles County [UPDATE 6/1]
    •  Madera County [UPDATE 5/21]
    • Marin County [UPDATE 6/23]
    •  Mariposa County
    •  Mendocino County [UPDATE 5/21]
    •  Merced County [UPDATE 5/21]
    •  Modoc County [UPDATE 5/19]
    •  Mono County [UPDATE 5/21]
    • Monterey County [UPDATE 6/1]
    • Napa County [UPDATE 5/21]
    • Nevada County
    • Orange County [UPDATE 5/27]
    • Placer County
    •  Plumas County
    • Riverside County [UPDATE 5/27]
    • Sacramento County [UPDATE 5/21]
    • San Benito County
    • San Bernardino County [UPDATE 6/1]
    • San Diego County [UPDATE 5/21]
    • San Joaquin County [UPDATE 5/27]
    • San Luis Obispo County [UPDATE 5/21]
    • San Mateo [UPDATE 6/22]
    • Santa Barbara County [UPDATE 5/21]
    • Santa Cruz County [UPDATE 6/1]
    •  Shasta County
    •  Sierra County
    •  Siskiyou County
    •  Solano County [UPDATE 5/21]
    • Sonoma County [UPDATE 5/27]
    •  Stanislaus County [UPDATE 5/21]
    •  Tehama County
    •  Trinity County [UPDATE 5/19]
    • Tulare County [UPDATE 6/1]
    • Tuolumne County
    • Ventura County [UPDATE 5/27]
    •  Yolo County [UPDATE 5/21]
    •  Yuba-Sutter County
  • On May 18, 2020, the California Department of Public Health revised the COVID-19 County Variance Attestation form, relaxing the criteria counties must meet in order to move more quickly through Stage 2.
    • Counties will be able to move toward a more expansive reopening if they attest to:
      • Demonstrated stable/decreasing number of patients hospitalized for COVID-19 by a 7-day average of daily percent change in the total number of hospitalized confirmed COVID-19 patients of <+5% OR no more than 20 total confirmed COVID-19 patients hospitalized on any single day over the past 14 days; AND,
      • 14-day cumulative COVID-19 positive incidence of <25 per 100,000 OR testing positivity over the past 7 days of <8%.
  • On June 5, 2020, the California Department of Public Health released a County Monitoring List to give Californians insight into how their county is performing and provide early indicators of developing areas of concern.  In conjunction with county-specific containment plans (which may be found in a county’s attestation), the County Monitoring List data will allow the public to monitor the impact of opening business sectors and better understand when the local health officer and county officials determine that it is necessary to put new interventions in place.
  • On June 5, 2020, the California Department of Public Health announced that counties may permit reopening of businesses in Stage 3 industries as early as June 12, so long as the published guidance is available and the county has submitted a local variance attestation.  The Department is effectively leaving it to local officials and health officers to make decisions regarding reopening specific sectors based upon the epidemiology and readiness of the county.  The county issued guidance for several Stage 3 industries, including:
  • The full list of industry guidance is available on California’s COVID19 website, and is updated regularly.
  • On June 18, 2020, Governor Newsom signed a new Executive Order broadly requiring people to wear a face covering when outside the home.  The Order essentially negates any existing county or local orders that said masks were not required, or that otherwise conflict with the state Order. 
  • As of June 23, 2020, 54 out of California’s 58 counties have submitted variances attesting that they meet the requirements for advancing to Stage 2.5 and Stage 3 of California's Resilience Roadmap for reopening the state.  The only counties that have not completed the variance process are Alameda, Imperial, San Francisco, and Santa Clara counties.  These counties may not open late Stage 2 and early Stage 3 industries such as gyms, bars, hair salons, barbershops, schools, dine-in restaurants, movie theatres, shopping malls, or professional sporting events.
  • [UPDATE] On June 28, 2020, Governor Newsom ordered bars to close in seven counties that were on the County Monitoring List for over three days: Fresno, Imperial, Kern, Kings, Los Angeles, San Joaquin, and Tulare counties.

    • Governor Newsom also recommended that eight other counties experiencing spikes in COVID-19 cases should modify their shelter-in-place orders to close their bars: Contra Costa, Riverside, Sacramento, San Bernardino, Santa Barbara, Santa Clara, Stanislaus, & Ventura counties.

  • [UPDATE] As of July 5, 2020, 19 counties are on the County Monitoring List.  Counties that remain on the County Monitoring List for 3 consecutive days are  required to shut down the following industries, unless they can be modified to operate outside or by pick-up (excluding bars):
    • Dine-in restaurants
    • Wineries and tasting rooms
    • Movie theaters
    • Family entertainment centers
    • Zoos and museums
    • Cardrooms

Local

  • San Francisco Paid Sick Leave: Although this Quick Reference Guide does not comprehensively track employment laws enacted by local governments, employers in San Francisco should be aware that on March 24, 2020, the San Francisco Office of Labor Standards Enforcement issued new guidance regarding the use of paid sick leave arising from the COVID-19 pandemic. This guidance supersedes guidance published on March 16, 2020.
    • On April 17, 2020, San Francisco Mayor London Breed signed the Public Health Emergency Leave Ordinance. The Ordinance is effective beginning on April 17, 2020, through the current local emergency or until June 21, 2020, whichever is earlier. Employers are not required to pay out any unused leave.
    • The Office of Labor Standards Enforcement (“SF OLSE”) published a poster that covered employers must provide in a manner calculated to reach all employees.
    • The SF OLSE also issued a Frequently Asked Questions guidance covering the Ordinance’s scope and requirements.
      1. Requiring on-demand delivery services to provide workers with effective disinfectant in the workplace, reimbursement for disinfectants and necessary personal protective equipment such as gloves and facemasks, protocols ensuring social distance and a sanitized workplace, and the option for “no contact” delivery; and,
      2. Providing additional scheduling flexibility for grocery store, drug store, restaurant, and on-demand delivery workers by requiring employers to grant leave, where “reasonably feasible,” for any reason under the city’s paid sick leave ordinance, the FFCRA, or any implementing regulations.
    • On April 7, 2020, the San José City Council passed the COVID-19 Paid Sick Leave Ordinance (City Council File # 20-437) temporarily requiring employers who are not subject to the EPSLA to provide paid sick leave during the public health emergency related to COVID-19.
      • Like the San Francisco Ordinance, the final version of this Ordinance is not yet available. We will post a link to it as soon as it is available and you may want to periodically check in with the San José Office of Equality Assurance, which is responsible for implementing and enforcing the COVID-19 Paid Sick Leave Ordinance.
      • On April 9, 2020, the COVID-19 Paid Sick Leave Ordinance was signed by Mayor Sam Liccardo and certified by city clerk. The Ordinance is effective as of April 7, 2020.
    • On April 7, 2020, Los Angeles Mayor Eric Garcetti issued an Emergency Public Order suspending Los Angeles Ordinance, Chapter XX, Article 5-72HH, which the Los Angeles City Council passed on March 27, 2020, to provide supplemental paid sick leave to workers affected by COVID-19 who are not covered under the FFCRA.
      • Mayor Garcetti’s Order replaces the ordinance with a supplemental paid sick leave scheme applicable to employers that have either: (i) 500 or more employees within the City of Los Angeles; or (ii) 2,000 or more employees within the United States.
      • The final Order is significantly different than the version of the ordinance passed by the City Council on March 27, 2020, particularly in that the final order contains several exemptions. Note that the Los Angeles Office of Wage Standards is tasked with publishing rules and regulations concerning the new Covid-19 paid sick leave requirements.
      • On April 11, 2020, the Los Angeles Office of Wage Standards issued Rules and Regulations Implementing the Public Order on Paid Sick Leave Due to COVID-19. The regulations provide guidance as to how the Mayor Garcetti’s emergency paid sick leave Order will be applied.
    • On April 28, 2020, the Los Angeles County Board of Supervisors enacted an emergency ordinance requiring employers with 500 or more employees to provide supplemental paid leave for COVID-19-related reasons.
    • On April 29, 2020, Los Angeles Mayor Eric Garcetti announced that residents of Los Angeles County now have the opportunity to get tested for COVID-19 for free, whether or not they are experiencing symptoms. Those with symptoms and certain critical front-line workers will still receive priority for the same- or next-day testing.
    • On May 12, 2020, the City of Los Angeles enacted the “Worker Retention Ordinance” and the “Right of Recall Ordinance,” both of which grant new rights to workers in the Airport, Hospitality, Event Center, or Commercial Property Services industry who have been laid off due to COVID-19.
      • Under the Worker Retention Ordinance, when a covered business experiences a Change in Control as defined by the Ordinance, employees are given preference in hiring by the successor business employer for 6 months and must be retained for at least 90 days, unless there is cause for termination.
      • Under the Right of Recall Ordinance, a covered employer must offer positions that become available on or after June 14, 2020, to qualified employees who were laid off on or after March 4, 2020.
    • On May 13, 2020, the Los Angeles County Public Health Officer extended the county’s Safer-at-Home Orderindefinitely and issued three appendices to the Order that contain mandatory safety protocols. Businesses must implement all measures within these appendices to the extent possible, and must be prepared to explain why any measure that is not implemented is inapplicable to the business.
    • On May 13, 2020, the City of Oakland enacted an Emergency Ordinance establishing emergency paid sick leave for Oakland employees during the COVID-19 pandemic.
    • On May 19, 2020, the City of Los Angeles updated its Supplemental Paid Sick Leave Emergency Order.
    • On May 19, 2020, the City of Long Beach enacted an emergency ordinance requiring supplemental paid sick leave for COVID-19-related reasons, joining the cities of Los Angeles, San Francisco, San Jose, and Oakland, and the County of Los Angeles, in extending the protections of the FFCRA to businesses with over 500 employees.
    • On May 19, 2020, the City of Long Beach followed Los Angeles City and County and adopted its own version of the Right to Recall Ordinance and Worker Retention Ordinance, but only as to janitorial and hotel employees.
    • On May 21, 2020, the San Francisco Department of Labor Standards Enforcement updated its Public Health Emergency Leave Ordinance Implementation Guidance.  The Implementation Guidance provides employers with helpful information about San Francisco’s Emergency Leave Ordinance, which requires businesses with more than 500 employees to offer paid leave for qualifying COVID-19 related reasons.
    • On May 22, 2020, Orange County issued guidance to help businesses navigate the County’s Stage 2 reopening.
    • On May 28, 2020, the City and County of San Francisco published its plan for a phased reopening of San Francisco.  San Francisco’s phased reopening differs from the California’s statewide Resilience Roadmap by requiring additional phases and pushing out the target dates for each phase of reopening.
    • On June 15, 2020, the San Francisco Department of Labor Standards Enforcement updated its Public Health Emergency Leave Ordinance Implementation Guidance.
    • On June 23, 2020, the Board of Supervisors for the City and County of San Francisco passed an emergency ordinance providing laid off employees with a temporary right to reemployment if the layoff was due to COVID-19.  The Ordinance is now before Mayor London Breed.

    • On June 23, 2020, the Board of Supervisors for the City and County of San Francisco introduced Emergency Ordinance – Cleaning and Disease Prevention Standards in Tourist Hotels and Large Commercial Office Buildings (“Healthy Business Ordinance”), file #200638.  The Healthy Business Ordinance would require hotels and office buildings to meet cleaning standards when they reopen for business, provide training to employees on paid time, provide certain protections to employees as they perform cleaning duties, prohibit retaliation against employees for refusing to work under conditions they believe are unsafe or for reporting such conditions or exercising rights protected by the Ordinance, and providing financial penalties for noncompliance.  The Ordinance is scheduled to be read at the July 7 Board meeting and needs a simple majority to pass.

Employers should work with counsel to ensure they are meeting their statutory and regulatory obligations under the laws touched upon in this Quick Reference Guide.

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