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

04.03.2020
Nossaman eAlert
Originally published on 03.26.2020 | What California Shelter-in-Place and Other Orders Mean for California Employers

Latest update on 04.3.2020 at 6:30 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 will be updated frequently.

Public Health Guidance and Updates

Federal

  • The World Health Organization provides a global perspective on the coronavirus pandemic, offering guidance, medical resources, and situation updates on the pandemic at large. 

State and Local (California) 

  • On March 21, 2020, Governor Newsom issued executive order [Executive Order N-35-20], which addresses a host of issues impacting public agencies, health care, and statutory deadlines for filing specified claims.
  • 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.
    • [UPDATE] 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 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.
    • California-specific public health orders, resources, and updates on the COVID-19 pandemic are available on the dedicated Coronavirus (COVID-19) in California website. Further information on the stay-at-home order can be found here.  
    • The California Department of Public Health’s website also offers public health information and updates on the COVID-19 pandemic. 
Employment Law Resources

Federal

  • 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).
    • [UPDATE] On March 16, 2020, the DOL’s Office of Apprenticeship issued Bulletin 2020-51, which provides flexibility for the delivery method for related instruction to registered apprentices.
  • 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. 
    • [UPDATE] 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.
  • The Occupational Safety and Health Administration (“OSHA”) offers employers and workers a wealth of information on the workplace safety aspects of the COVID-19 pandemic.
    • 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.
    • 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 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.
    • [UPDATE] 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.
      • 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.
    • [UPDATE] On March 24, 2020, the DOL issued Field Assistance Bulleting 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. 
      • Please note that the FFCRA does not become effective until April 1, 2020.
    • [UPDATE] 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.
    • [UPDATE] On the evening of 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.
    • [UPDATE] March 27, 2020—the U.S. Treasury Department, Internal Revenue Service and the U.S. Department of Labor announced 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.  
    • [UPDATE] 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 page.
      • 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.
    • [UPDATE] 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.
    • [UPDATE] 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 a temporary 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.
    • [UPDATE] 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.
    • [UPDATE] 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.
    • [UPDATE] 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.
    • [UPDATE] 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.
    • [UPDATE] 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 sides are available on-demand.
    • [UPDATE] 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.
  • [UPDATE] 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.
    • [UPDATE] On March 27, 2020, the bill passed the House and has been signed into law.
    • [UPDATE] On March 27, 2020, The House Committee on Ways & Means has issued guidance and a FAQon the provisions related to unemployment compensation in the Senate-passed CARES Act. The Committee has also issued a FAQ relating to the financial assistance made available to individual under the CARES Act.
    • [UPDATE] 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 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.

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 March 17, 2020, Governor Newsom issued 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.
    • [UPDATE] California’s Labor and Workforce Development Agency issued the following guidance regarding the Governor’s Executive Order N-31-20.
  • [UPDATE] San Francisco Paid Sick Leave: Although this Quick Reference Guide does not 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.

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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