COVID UPDATES – As of 9/17/2020

Half way through September and boy has it been a busy week.  Once again we are met with new AND revised info for all things COVID and FFCRA.  Grab your reading glasses, tea, coffee – whatever you need to get through this.  This one is a little lengthy but it’s all important information that you need to know.  Check out what’s new, and don’t be afraid to reach out to your HR Pro with any questions.  We’re here to help you navigate all of the changes.

 

All California Employers 

AB 1867

Workers Eligible for Paid Sick Leave

Expands eligibility for paid sick leave to include those workers not covered under the Emergency Paid Sick Leave Act, including the following:

  • Workers in private companies whose employer has 500 or more (remember the initial FFCRA was for 500 or less so this means ALL EMPLOYERS are now subject to this) employees in the United States; AND
  • Certain health care providers or emergency responders whose employer (public or private) had elected to exclude them from the paid sick leave requirements under the Emergency Paid Sick Leave Act.

 

*Individuals who do not leave their residence to work for their employer are not eligible. Certain food sector workers covered by a separate leave requirement are also exempt given the employer offers a supplemental benefit.

 

Reasons for Leave

To qualify a covered worker must be unable to work due to one of the following three reasons:

  • He or she is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  • A health care provider has advised him or her to self-quarantine or self-isolate due to concerns related to COVID-19; or
  • The employer has prohibited him or her from working due to health concerns related to potential transmission of COVID-19.

 

Paid Leave Amount

Full-time workers may receive up to 80 hours of paid leave. Part-time workers may receive benefits equal to the total number of hours they are normally scheduled to work over two weeks.

 

Payment of sick leave for all the above reasons is to made based on the higher of the local minimum wage, the state minimum wage, or the employee’s regular rate, up to a total of $5,110 per employee ($511 per day).

 

Posting Requirement

A model notice relating to COVID-19 supplemental paid sick leave for covered workers will be made available for purposes of the posting requirements under existing law. If workers are remote, this will need to be emailed out to all employees.

 

Miscellaneous

  • Family leave mediation pilot program will permit an employer with between 5-19 employees, or their employees, to request all parties to participate in mediation through the Department of Fair Employment and Housing’s (DFEH) dispute resolution division, within 30 days of an employee’s receipt of a right-to-sue notice alleging a violation. Upon receipt of a request to participate in the mediation, the statute of limitations for the employee’s claims would be tolled until the mediation is complete.

 

  • Mandates that food sector workers be permitted to wash their hands as needed, or at a minimum, every 30 minutes.

 

SB 1159 – Workers Compensation, COVID 19

Establishes a workers compensation presumption that will apply to most employers in the state that have a COVID-19 “outbreak” through 2022.  This legislation shifts the burden of proof to presume that covered workers who contracted COVID-19 did so at work, unless the employer can prove otherwise. It also enacts rebuttable presumption that applies to first responders and certain health care workers.  The new law requires employers to provide notice to their workers compensation carrier of employees who test positive for COVID-19

 

First Responders

SB 1159 establishes a rebuttable presumption for COVID-19 cases contracted by certain first responders and health care workers. This presumption applies from July 6, 2020 and will operate until January 1, 2023.

  • presumption covers firefighters, peace officers, employees of health facilities who provide direct patient care or custodial services, nurses, EMTs, and employees who provide direct patient care for home health agencies. The presumption also applies to other employees of health facilities, but the presumption for these employees does not apply if the employer can show the employee did not have contact with a patient who tested positive for COVID-19.

“Outbreak” Presumption Applies To Most Other California Employers

For all other California employers with five or more employees, SB 1159 adopts a complicated “outbreak” analysis that will be complex to implement and administer. The new law establishes a rebuttable presumption that will apply if an “outbreak” occurs, which is defined as any of the following:

  • If the employer has 100 employees or fewer: four employees test positive for COVID-19 with 14 calendar days;
  • If the employer has more than 100 employees: 4% percent of the number of employees test positive for COVID-19 within 14 calendar days; or
  • The place of employment is ordered closed by public authorities due to a risk of infection with COVID-19.

This presumption goes into effect immediately, and relates back to cases arising or after July 6, 2020. This presumption will apply until January 1, 2023.

New Employer Reporting Requirements

If you “know or reasonably should know” that an employee has tested positive you must report the following information to your workers’ compensation claims administrator within three (3) business days

  • An employee has tested positive;
  • The date that the employee tests positive (the date the specimen was collected for testing);
  • The specific address or addresses of the employee’s place of employment during the 14-day period preceding the positive test; and
  • The highest number of employees who reported to work in the 45-day period preceding the last day the employee worked at the place of employment.

The Labor Commissioner to impose up to a $10,000 civil penalty against an employer that submits false or misleading information or fails to submit information in violation of these new reporting requirements.

Second, it requires covered employers to go back and report any positive tests (and the same information above) to their claims administrator dating back to July 6, 2020. Because the presumption applies retroactively back to July 6, employers have to report this information to see if the rebuttable presumption will apply. You will need to move quickly as you only have 30 days from the date the bill was signed to report this previous information to their claims administrator – meaning your due date for catch-up reporting is October 17, 2020.

 

Employers with fewer than 500 employees: 

  • FFCRA leave is only available if the employee has work to take leave from;
  • The definition of “health care provider”;
  • An employee may only take intermittent leave under the FFCRA with an employer’s permission; and
  • An employee must provide documentation to their employer for FFCRA leave before the leave is taken..

Work Availability Required For Leave

In its revised regulations, the DOL reaffirms the work availability requirement for all six reasons an employee may take EPSL and adds further explanation that this requirement exists based upon the language of the statute.

Definition of “Health Care Provider”

DOL revised the regulation to focus the “health care provider” definition on who the employee is. “Health care provider” now means:

  • A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the state in which the doctor practices;
  • Any person who is employed to provide diagnostic services, preventative services, treatment services or other services integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care; and
  • Any other person determined by the Secretary of Health and Human Services to be capable of providing health care services.

Intermittent Leave

DOL reaffirms that intermittent FFCRA leave is only available upon an employer’s consent, and it analogizes its FFCRA intermittent leave rule to longstanding FMLA principles that require employer consent for intermittent leave when FMLA isn’t taken for a medical reason. The DOL considers FFCRA intermittent leave to fall outside of leave taken for a medical reason. Thus, employer authorization for intermittent leave is appropriate.

Employee Documentation

The DOL amended its rule to require that employees provide the documentation “as soon as is practicable,” which in most cases will sync up to the time that the employee provides notice of the need for leave.

These revised regulations will go into effect once they’re published in the Federal Register, which is expected to happen on September 16, 2020.

 

Employers with more the 500 Employees:

 ALL employers with 500 or more employees in the United States to provide COVID-19 supplemental paid sick leave to their California employees beginning no later than September 19, 2020. It also extends those requirements to health care providers and first responders whose employers elected to exclude them from the Families First Coronavirus Response Act (FFCRA) leave requirements.

Because employers only have a short time to comply with this new law, please check out the DLSE’s new FAQs answer employers’ common questions about coverage, eligibility, calculating leave amounts and pay, and how previously provided paid sick leave under local ordinances, for example, may be credited toward the new law’s requirements. 

Covered employers must display posters in a conspicuous place that informs employees about COVID-19 supplemental paid sick leave, but if an employer’s eligible workers don’t frequent a workplace, the employer may send the notice through electronic means (e.g., email).

We’ve attached the  two model posters created, one for food sector workers and a second for all other covered employers. 

One final reminder, employers with 500+ employees outside of the food sector will need to update their wage statements to provide employees notice of the amount of COVID-19 supplemental paid sick leave available each pay period under the new law.