A Guide for California Employers and Employees. A Guide to California Labor Law for Employers and Employees During COVID -19
Whether you are an employer or an employee in California, you need to know the basics of COVID-19 employment laws. If you know them already, then as an employer, you should do more to take care of your employees. If you're an employee, you should know which benefits you're supposed to receive, which laws protect you from the pandemic, and that you have every right to take it up with labor attorney if necessary.
California Governor Gavin Newsom signed new COVID-19-related labor laws:
Businesses or employers with 500 or more employees and healthcare employers with less than 500 employees are required to provide up to 80 hours of COVID-19-related supplemental paid sick leave to their California employees.
Create a presumption that injuries cover COVID-19-related illnesses or deaths for workers' compensation purposes under some circumstances.
Mandate that employers with 500 or more employees provide up to 80 hours of COVID-19-related supplemental paid sick leave to their California employees.
The following sections go into each of the new rules.
Supplemental Paid Sick Leave (AB 1867)
AB 1867 (California Labor Code 248, 248.1) mandates that employers give up to 80 hours of COVID-19-related supplementary paid sick leave to their California workers (CSPSL).
Employees that the federal Families do not protect First Coronavirus Response Act (FFCRA)1 or California Executive Order N-51-20 will take advantage of this leave (EO N-51-20). 2
AB 1867's criteria for employers in the nonfood sector took effect on September 19, 2020.
This law expires on December 31, 2020, or when any federal extension of the FFCRA expires, whichever comes first.
Who Does the New California Supplemental Pay Sick Leave (CSPSL) Law Protect?
The updated California Supplemental Paid Sick Leave (CSPSL) standards apply to all California employers with 500 or more employees in the United States. AB 1867 also applies to public and private agencies with less than 500 employees that hire health care providers or first services and opt out of the FFCRA's emergency paid sick leave provisions.
Who is Eligible for the California Supplemental Paid Sick Leave (CSPSL)?
If a California employee working for a covered employer is unable to work for any of the following reasons, they are liable for CSPSL:
The federal, state or local government has issued a COVID-19-related quarantine or exclusion order.
A healthcare professional advises employees to self-quarantine or self-isolate due to COVID-19 concerns.
The employer has barred the employee from working due to health concerns regarding the possible transmission of COVID-19.
CSPSL must be made available to the eligible employee as soon as they request it in writing or orally.
What is the minimum amount of leave that must be provided?
The amount of CSPSL an employee can take is determined by how much work they do. Full-time employees are entitled to 80 hours of CSPSL, which is the law's maximum duration of time off. Some workers are paid fewer CSPSL, depending on the number of hours they work. The table below illustrates how to find out how much CSPSL workers can handle.
What is the minimum wage for CSPSL employees?
For a qualifying cause, the employee decides how many hours of CSPSL he or she has to use up to the maximum required. The employer cannot make the employee use any other paid or unpaid leave, paid time off, or holiday time before or in place of the CSPSL. Employees are entitled to CSPSL and "regular" paid sick leave under Labor Code Section 246.
However, if an employer has already provided an employee with supplemental paid leave for any of the reasons mentioned above4 (other than paid sick leave available under Section 246), the other paid leave hours can be counted against CSPSL.
Additionally, if this other paid leave was given between March 4, 2020, and the effective date of this law (described above) but did not reimburse the employee in a sum equal to or greater than the amount needed for CSPSL, the employer may retroactively pay the difference and allocate the leave against its CSPSL obligations.
The CSPSL applies to the following:
The employee's daily pay rate for the most recent pay period.
The minimum wage in your state.
The minimum wage in the city.
Some Prerequisites
Wage Statements. On employees' itemized wage statements or in separate writing on each defined payday, employers covered by this must provide written notice of the amount of available CSPSL.
Record keeping. A protected employer must maintain records of hours worked, leave accrued, and leave used by workers for at least three years.
California Workers' Compensation
SB 1159 (also known as California Labor Code sections 3212.86 and 3212.88) provides a new structure for COVID-19-related workers' compensation claims. As an emergency act, this law took effect on September 17, 2020, and will remain in effect until January 1, 2023.
For employers of five or more employees, SB 1159 establishes a rule that an accident or death caused by COVID-19 occurs out of and in the course of jobs and thus is protected by workers' compensation, if:
The employee/worker tested positive for COVID-19 or was diagnosed with COVID-19 within 14 days of working at their place of current employment (or at their employer's direction) since July 6, 2020.
The employee's positive test or diagnosis occurred during an "outbreak" at his or her workplace.
If one of the following happens at a particular place of employment within 14 calendar days, an "outbreak" exists:
Four workers test positive for COVID-19 if the employer has 100 or fewer employees at a given site.
If an employer has more than 100 workers at a single location, four percent of those who report to that location test positive for COVID-19; or
Due to a risk of infection/outbreak of COVID-19, the State Department of Public Health, a local public health agency, the Division of Occupational Safety and Health, or a school superintendent directs a particular place of employment to close.
This assumption can be disproved. Evidence relevant to rebutting the presumption which includes, but is not limited to, evidence of COVID-19 transmission prevention measures in effect at the employee's workplace and evidence of an employee's nonoccupational COVID-19 infection risks.
Gov. Newsom's Executive Order (EO N-62-20) created a similar rebuttable assumption in force from March 19, 2020, to July 5, 2020. EO N-62-20 was codified in AB 685, and its terms were extended beyond July 5, 2020.
SB 1159 also mandates the submission of reports. When an employer knows or should know that an employee has tested positive for COVID-19, the employer must notify its claims administrator in writing, via electronic mail or facsimile, within three business days, of the following:
A positive test result for an employee.
The date on which the employee is found to be positive.
During the 14-day cycle preceding the employee's positive test, the address of the employee's particular place of employment.
The highest number of workers who came into work at the employee's specific place of employment in the 45 days before the employee's last day at that specific location.
Infection Prevention Requirements for COVID-19 (AB 685)
AB 685 (California Labor Code 6325, 6409.6, 64320) establishes new workplace notification and recordkeeping standards for COVID-19 cases. Cal/OSHA is also modified as a result of this. These rules will take effect on January 1, 2021, and will last until January 1, 2023.
An employer must:
Provide a "written notice" to all workers, their exclusive representative (if any), and the employers of subcontracted employees who were on the premises at the same worksite as a "qualifying person" (i.e., an individual with COVID-19)8 that they may have been exposed to COVID-19 within one business day of receiving a "notice of possible exposure to COVID-19" 6 in the workplace.
Provide information about COVID-19-related benefits to previously-exposed employees and their exclusive representative (if any) may be entitled (under applicable federal, state, or local laws) including, but not limited to:
Workers/employee's compensation
Prerogatives for employees who were exposed:
Supplemental COVID-19-related leave
Company sick leave
State-mandated leave
Supplemental leave
Notify all workers, their exclusive representatives (if any), and the employers of subcontracted employees regarding the disinfection and safety plan that the employer intends to enforce and complete in compliance with the Federal Centers for Disease Control guidelines.
Staff who "conduct COVID-19 testing or screening or provide direct medical care or treatment to individuals who are suspected of having tested positive for COVID-19, are persons under investigation or are in quarantine or isolation due to COVID-19 unless the qualifying individual is an employee at the same worksite" are not considered "employees" for the purposes of the notice.
Additionally, if an employer is informed of the number of cases that meet the criteria of a COVID-19 "outbreak," the employer must inform the local public health agency (within the jurisdiction of the workplace/worksite) of the names, number, occupation, and worksite of employees who meet the definition of a qualified person within 48 hours. The business address and NAICS code of the worksite where the eligible individuals operate must also be recorded.
Any laboratory-confirmed cases of COVID-19 at the worksite must be reported to the local health department by an employer who has experienced such an outbreak.
Requirements for Record Keeping
For at least three years, an employer must keep records of the above-written notices to workers, their exclusive members, and the employers of subcontracted employees. The notices to local public health departments are exempt from this record-keeping provision.
Cal/OSHA AB 685 also modifies California OSHA law to :
Include potential COVID-19 exposure as an "imminent hazard" that allows Cal/OSHA to issue an Order Prohibiting Use (OPU) prohibiting entry to or use of a place of business
Streamlines the process for Cal/OSHA to issue "serious violations" by eliminating the pre-citation notice and the rebuttal-at-hearing process for employers. The nature of this warning does not allow for a thorough discussion of these changes.
COVID-19 Prevention Program Requirements
Employers must plan, adopt, and sustain a written COVID-19 prevention policy, a stand-alone program, or an integrated Accident and Illness Prevention Program.
The COVID-19 preventive program should provide mechanisms for the employer to:
COVID-19 information to employees, identifying and evaluating and correcting COVID-19 risks, investigating and responding to COVID-19 cases in the workplace, providing COVID-19 preparation and guidance to employees, ensuring physical distancing, and providing and ensuring proper use of face coverings.
Cal-OSHA has released a model plan framework to help employers create their own programs and procedures by the emergency standards and other employment laws.
The Standard Requirements
Current COVID-19 safety plans will not meet the new regulations stringent requirements. Employers must now incorporate all of the following clauses in their COVID-19 Prevention Plans—and, of course, comply with them:
COVID-19 Potential Exposure Notification. Employers must inform potentially exposed workers (and their approved representatives), independent contractors, and other employers present at the workplace within one business day of possible COVID-19 disclosure.
"COVID-19 exposure" means being within six feet of a "COVID-19 case" (defined below) for 15 cumulative minutes or more for any 24-hour period during the "high-risk exposure period," which is defined as follows:
For an asymptomatic COVID-19 case, from two days before to ten days after the onset of noticeable symptoms and at least a day (24 hours) after the resolution of fever and improvement of other symptoms, or for a pox case, from two days before to ten days after onset of symptoms
A person who had a positive COVID-19 test is subject to a COVID-19 order to isolate given by a local or state health official or has died as a result of COVID-19 as determined by a local health department is called a "COVID-19 case."
COVID-19 cases and individuals who have COVID-19 symptoms must keep their personal details private.
Cases with COVID-19 and others that have been exposed to it have been removed. Employees from the Place of Work
COVID-19 cases must be kept out of the workplace before they meet the following criteria:
All conditions must be met for workers with symptoms:
A fever/body temperature of 100.4 degrees or higher has been resolved without using fever-reducing drugs for at least 24 hours.
COVID-19 symptoms have improved or have been reduced
At least 10 days have passed since COVID-19 symptoms first appeared.
At least 10 days have elapsed after the specimen collection for a positive COVID-19 examination for workers who do not have symptoms.
Employees who may have been exposed must be kept out of the workplace for at least 14 days after the last recorded date of exposure.
If the employee is subject to a local or state-issued isolation or quarantine order, the employee's time away from work can be extended.
A negative COVID-19 test result may not be required for an employee's return to work.
Wages/Salaries: Pay for Exclusion
If a worker is unable to work due to COVID-19 infection or exposure but is otherwise able and willing to work, the distribution of their wages and benefits must be continued.
The compensation continuation requirement has no upper limit, but an employer may require an employee to use all paid sick leave benefits before offering exclusion pay, and it may offset payments by the amount an employee receives in other benefits. On the other hand, employers would make up the difference if any of those benefits fall short of an employee's maximum salary and benefits.
If an employer may show that the employee's COVID-19 exposure was irrelevant to their job, they are exempt from the exclusion pay criteria.
Testing for COVID-19
Employers must provide COVID-19 monitoring to all workers who might be exposed to COVID-19 in the workplace at no cost (during working hours). An employee's time spent being assessed is counted as compensable hours worked.
If there are numerous COVID-19 infections or an epidemic, all workers in the exposed workplace must be screened immediately and once a week before no new cases are identified in the workplace for 14 days.
Within a 14-day period, an "outbreak" is characterized as three or more cases in an "exposed workplace".
Any worksite, working environment, or common area at work used or accessed by a COVID-19 case during the high-risk era, including toilets, walkways, hallways, aisles, break or eating areas, and waiting areas, is called an "exposed workplace." Buildings or buildings not accessed by a COVID-19 event are not included in the exposed workplace.
In the event of a large COVID-19 outbreak, all workers in the affected workplace must be screened twice a week before no new cases have been found in the workplace for 14 days.
In a 30-day period, a "major outbreak" is characterized as 20 or more cases in an exposed workplace.
As part of the employer's COVID-19 prevention initiative, all workers must be told about testing choices.
COVID-19 FAQs have been released by the California Department of Fair Employment and Housing, indicating that antibody testing would not be permitted—only viral testing. Furthermore, a negative viral test result may not be needed for an employee to return to work.
Making A Report
In compliance with current legal requirements, employers must submit information about COVID-19 cases at work to the local health department.
In compliance with workers' compensation reporting provisions, employers must disclose an employee's serious illness or death that occurs in a place of employment or in connection with any employment.
Immediately, but no later than 48 hours after an employer learns (or might have known) about three or more COVID-19 cases, the employer must notify the local health department to report the cases and receive advice on how to prevent COVID-19 from spreading further in the workplace.
Requirements for Further Reporting In compliance with AB 685 and SB 1159.
Employers should be mindful of additional reporting provisions under SB 1159 and AB 685, in addition to the emergency standard reporting requirements.
SB 1159 is a bill introduced in the United States Senate. SB 1159 provides a rebuttable assumption that an employee's illness induced by COVID-19 is an occupational accident if:
The employee was a certain sort of healthcare worker or emergency responder.
There was an "outbreak" at the particular place of employment, identified as one of the following within 14 calendar days:
If a business or employer has 100 or fewer employees at a specific location of employment, four employees test positive for COVID-19.
If a business or employer has more than 100 employees at a specific location of employment, and four percent of the total number of employees who reported to the specific place of employment have tested positive for COVID-19.
If a business or employer has more than 100 employees at a specific place of employment, and four percent of the total number of employees who reported to the specific place of employment test positive for COVID-19.
A federal agency has ordered a particular place of business to close.
Employers must notify their workers' compensation claims administrator within three business days of learning or reasonably should have learned that an employee tested positive for COVID-19. If the employee files a lawsuit, the report must be written and must not reveal the employee's identity.
Additionally, on or after July 6, 2020, an employer must disclose identified COVID-19 cases to the workers' compensation claims administrator, which is a retroactive requirement.
685 AB COVID-19: Employee Safety (severe violations, notification, exposure)
AB 685 imposes new reporting provisions that will take effect on January 1, 2021. AB 685 requires employers to inform all workers at a workplace of possible exposures, COVID-19 benefits, and precautions, and disinfection and safety measures that will be taken at the workplace in response to the potential exposure, as well as report all workplace outbreaks to local public health agencies (three or more cases in a two-week period).
Employers must keep track of all COVID-19 incidents, including the employee's name, contact details, occupation, job location, last day at work, and date of a positive COVID-19 test.
Personal identifying details must be deleted from the information before it is made available to employees, approved employee representatives, or as otherwise permitted by law.
Investigation
Employers must have a protocol in place to examine COVID-19 cases in the workplace, including protocols for confirming COVID-19 case status, collecting details about COVID-19 test results and initiating COVID-19 symptoms, and recognizing and tracking COVID-19 cases.
Employers must also look at whether working conditions led to the risk of COVID-19 exposure and what can be done to reduce COVID-19 hazards exposure.
Employers must create and enforce a process for monitoring workers for COVID-19 symptoms and reacting to employees who have them.
Workers can be asked to determine their own symptoms until reporting to work. If the screening is performed at work, all people must wear masks, and the thermometer must be non-contact.
Instruction and Training
Employers must educate workers on many policies, procedures, and public health guidance related to COVID-19, including:
The employer or business' policies and procedures designed to protect employees from COVID-19 hazards
The employer or business' policies and procedures designed to protect employees from COVID-19 hazards
The employer or business' policies and procedures are designed to protect employees from COVID-19 hazards.
COVID-19 benefits to which the employee may be entitled under applicable federal, state, or local legislation (for example, benefits provided under worker's compensation, the Federal Families First Coronavirus Response Act, the employer's own leave policy, and by contract). Information regarding COVID-19 transmission and prevention (including handwashing, physical distancing, and face coaxing); and information regarding COVID-19 transmission and prevention (including hand washing, physical distancing, and face coaxing).
Physical/Social Distancing
Employers must enforce physical distancing conditions. Except for momentary exposure when workers are in motion, all employees must be separated by at least six feet.
Some physical distancing techniques include:
Telework, also known as remote working, is a form of arrangement where workers work from home.
reduced face-to-face encounters, including that of visitors
Signs and floor markers provide visual cues.
Arrival, departure, job, and break schedules are all phased.
To allow for greater distance between workers by changing work methods/practices or company standard procedures.
Masks
Employers must have a face covering (mask) and ensure that workers wear it over their mouth and nose while working indoors, outside, and within six feet of another person and when needed by a public health order.
A face shield cannot be worn instead of a face covering, but it can be worn in conjunction with one.
The emergency standards outline several specific exceptions to the face-covering provision and conditions if an employee is unable to do so.
The employer must convey the workplace's face-covering rules to guests and other non-employees.
Employers should not forbid workers from wearing masks when it is unnecessary unless doing so poses a safety risk.
Additional Protection
Other protective measures included in the emergency standards include:
Maintaining physical barriers where physical separation is not possible
Providing ventilation and maximizing outside air if possible
Implementing cleaning and disinfecting protocols
Promoting and facilitating adequate hand washing
Providing non-methyl alcohol hand sanitizers
Providing additional personal protective equipment (e.g., gloves, goggles, face shields, and respirators)
Additional Housing and Transportation Requirements for Employer-Provided Housing
Physical distancing, face coverings, cleaning and disinfection, screening, and isolation of COVID-19 cases are all required of employers who provide accommodation or transportation.
What Employers Can Do to Help Their Employees?
Reduce Workers' Financial Burden. When you start working from home, you soon understand how luxurious certain office perks can be (and we're not just talking about the coffee maker). Not everybody has a ready-to-go home office setup, and although working at the kitchen table is fine for a day or two, it's not ideal in the long run. Employees may be encouraged to transform a spare bedroom or a corner of their living space into a suitable remote office via a reimbursement scheme.
Encourage staff to buy goods that would improve their physical well-being. Although kitchen chairs, living room recliners, and trendy desk chairs may provide temporary comfort, an ergonomically built office chair can provide the best lumbar, spinal, and neck support. Standing desks, meanwhile, can help relieve the pain of sitting all day, and while they're becoming more common in workplaces, they're still uncommon in home offices.
To put these systems in place, consult with human resources and devise a strategy that fits the company's needs.
Support is critical. Many businesses are being forced to close their doors permanently as states enforce shelter-in-place mandates. However, essential industries will continue to operate, such as the manufacture of consumable and protective products and the warehouses and transportation services needed to ship them.
Employee health and safety are especially critical for those who cannot self-quarantine, whether they work in an office, a factory, or a manufacturing plant. Personal protective equipment (PPE) and sanitization supplies should be provided as early as possible. Simultaneously, encourage any employee who is showing any signs or symptoms of disease (COVID-19 or otherwise) to return home as soon as possible.
Distancing oneself from others is important in any case, but it is particularly important at work. If practicable, prohibit staff from using lunchrooms and breakrooms; if that isn't possible, enforce the CDC's six-foot-apart guidelines. Jobs in the warehouse and plant should be spaced out as much as possible, and if appropriate, employees should be reassigned to other tasks. Relocate workstations in close-quarter open offices so that workers aren't using cubicles or workstations that are too close together.
Educate and Inform. Senior leadership, middle management, and human resources have a trusted and influential voice in every company structure. Providing an accessible mode of communication or contact person is crucial during the most difficult moments when the crisis escalates and once operations begin to return to normal.
Bulletins, memos, and updates can explain what the organization is doing to plan and protect its employees. Furthermore, having an authoritative, well-researched source of information about the COVID-19 pandemic will ensure that everybody is updated and on the same page.
Consider delivering some news through visual mediums in addition to written communications. Request that the company's president or CEO film a short video message that all employees can see. When in-person communication is minimal, vocal inflection and body language become more important than ever.
Check Up on Everyone. Offices are communal areas where people interact with their coworkers outside of business and meetings. A passing greeting is normal in the workplace, but once face-to-face interaction is fully removed, these brief exchanges become valuable commodities.
In difficult times, candid communication becomes much more critical for managers and supervisors. Even with the confusion caused by COVID-19 in the workplace, now is not the time to put off one-on-one meetings or swift check-ins. Schedule online meetings or phone calls with your direct reports, and make sure to expand the discussion beyond work while remaining in a secure (and legally compliant) environment:
Examine if they feel well-supported by their colleagues, administrators, and senior management. This involves their perceptions of the company's transparency and responsiveness as circumstances shift.
Ensure that the employee's working specifications are met, including equipment, hardware, and any physical files they need.
Ask workers how they are doing personally, and be open to the answers they get.
Remind them of any available mental health resources, such as Employee Assistance Programs (EAPs) or over-the-phone therapy. This delicate topic can be placed alongside other important healthcare programs to put workers at ease.
Do not inquire about their personal health, such as if they are having symptoms or whether they have come into contact with an infected person. If this information is not provided freely and without further inquiry, it can lead to legal problems and liabilities.
Keep the water cooler conversation going with the staff. A quick functionary greeting and a minute of casual interaction after taking care of tasks over chat or wrapping up a call will restore a sense of normalcy that can be lost while working remotely. These passing moments can be emotionally beneficial to more extroverted or lonely colleagues who have a rough time with quarantine.
Expect Curve Balls. When companies, colleges, and services come to a halt, they often leave behind specific problems. Important aspects of employees' personal lives can take on new meaning in their everyday lives, and knowing these challenges may help them get through the tougher times.
Parents who depend on daycare centers and schools have been struggling to find childcare, and in many cases, family members or providers cannot help. Allow for flexible schedules, alternate hours, or time off for parents who may find themselves unexpectedly caring for their children or teaching them at home.
When dealing with sensitive secondary effects, employers must show the greatest sensitivity and grace to workers. As businesses close their doors and enact temporary layoffs, some households can go from dual to single-income. Any amount of relief or help, whether in the form of organizational flexibility, financial aid, or assistance in finding outside assistance, may be a godsend for workers going through a financial downturn.
Know that this will get better for your peers, staff, loved ones, and yourself. We've seen the incredible strength of compassion and empathy, just as we've seen the wonders of corporate agility. Support from one's employer can significantly impact an employee's life during difficult times. As we heal from the effects of COVID-19, this support will help us return to normal life more easily.
Know Your Rights
If you think your employer or coworkers have subjected you to dangerous work practices during the pandemic, or if you feel you have not received compensation as the law mandates, you should seek legal counsel to help you understand.
You can find labor lawyers in California, or inquire about your case through an initial consultation on our 24/7 live chat.
