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self-study / Employment

Key COVID-19 points for employers to keep in mind in 2021

Shaye Schrick

Partner, Delfino Madden O'Malley Coyle & Koewler LLP

With vaccine developments being reported every day and the end of the COVID-19 pandemic optimistically in sight, the next several months will be critical to managing and reducing COVID-19 transmission. Employers must continue to navigate the various intertwining -- and sometimes contradictory -- employment laws affecting their workplaces both during and after the crisis. Following are some of the key COVID-19 points to keep in mind as employers enter the new year.

1. Determine Whether, When and to What Extent Operations Can Be Open

Employers should review state and local orders to determine which job sites are permitted to be open and which must close entirely, limit their businesses to basic operations, or rely entirely on remote work. Although California has issued state-wide orders, various local governments have their own orders that may be more restrictive than those currently in place state-wide. As these orders may be modified with changing COVID-19 statistics, it is important to continually monitor them to ensure compliance.

2. Establish and Effectively Communicate Policies and Training Materials

Throughout the pandemic, there have been varying levels of federal, state and local guidance regarding COVID-19 workplace policies and procedures. Most recently, the California Occupational Safety and Health Standards Board issued temporary Emergency COVID-19 Prevention Regulations, which went into effect Nov. 30, and remain operative for 180 days unless extended.

Under the temporary standards, employers must implement an effective written COVID-19 Prevention Plan, communicate that plan to employees, and make it available to them and their authorized representatives upon request. The plan must cover a detailed list of items, including but not limited to: a system of communication for reporting, requesting accommodations, accessing testing and sharing hazards, policies and procedures; identification, evaluation and correction of COVID-19 hazards; investigating and responding to COVID-19 cases; effective training on policies and procedures, available COVID-19-related benefits, transmission of COVID-19, methods of physical distancing, face coverings and hygiene, and COVID-19 symptoms; physical distancing measures; appropriate use of face coverings; engineering controls, administrative controls, and personal protective equipment; reporting, record keeping and access; and exclusion of COVID-19 cases and exposures, including return-to-work protocols.

To the extent state or local health department mandates or guidance have more protective or more stringent standards, those standards will continue to apply.

Cal/OSHA's temporary standards apply to all employees and places of employment with the exception of places of employment with one employee who does not have contact with others, employees working from home, and employees covered by Cal/OSHA's Aerosol Transmissible Diseases standard. Cal/OSHA has issued and will continue to update FAQs explaining the temporary standards (https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html), which includes a Model COVID-19 Prevention Plan, and has committed to developing training in a webinar format.

3. Comply with Reporting and Notice Requirements and Recordkeeping Obligations While Protecting Confidential Information

In addition to providing required information to state and local health departments, employers must also provide certain information regarding COVID-19 cases to their workers' compensation claims administrator. Notice must also be provided to employees and their exclusive representatives, and to the employers of subcontracted employees, regarding potential COVID-19 exposure in the workplace. Finally, employers must record and track all COVID-19 cases and maintain records of inspections, hazard corrections, and training.

Employers have an obligation to maintain employee privacy when recording and/or communicating information about COVID-19 cases or possible exposure to COVID-19. Except for certain exceptions provided for by law, personal identifying information and medical information must be kept confidential.

4. Coordinate Adequate Resources for Testing and Communicate Them to Employees

Cal/OSHA's temporary standards require employers to inform all employees about how they can obtain testing. In addition, employers must offer testing to employees at no cost and during working hours in the event of potential COVID-19 work-related exposure. If there is an "outbreak" or "major outbreak" as defined by the temporary standards, employers must provide immediate and ongoing testing to employees in the exposed workplace. Testing must be provided in a manner that ensures employee confidentiality.

5. Ensure Compliance with All Paid Leave Requirements

On April 1, the federal government implemented the Families First Coronavirus Response Act, which requires private employers with fewer than 500 employees and all government employers to provide paid sick leave and/or expanded family and medical leave for specified reasons related to COVID-19.

On Sept. 19, California's Supplemental Paid Sick Leave law went into effect. It codified and expanded upon an April 16 Executive Order providing paid COVID-19-related sick leave to food sector employees and further provided paid leave to healthcare providers and emergency responder employees not covered by the FFCRA and to all employees of employers with 500 or more employees. With the addition of this law, nearly all California employees became eligible for some version of paid leave for specified COVID-19 reasons, though those reasons and the amount of available leave vary depending upon which law applies. Each of these laws include notice requirements and, in some cases, specific documentation on employee wage statements.

Both the federal and state COVID-19 paid leave laws are set to expire on Dec. 31. While it is expected they will be extended into 2021, no such action had taken place at the time of this publication.

Finally, Cal/OSHA's temporary standards require employers to exclude from the worksite all employees who test positive for COVID-19 or have had COVID-19 exposure. The period of exclusion varies depending upon the reason for the exclusion. While excluded from work, if employees are otherwise able and available to work, employers must maintain their earnings, seniority and other rights and benefits unless the exposure is not work-related. Employers may use FFCRA pay, California Supplemental Paid Sick Leave, and other permissible employer-provided sick leave benefits during this time, if available, and may offset payments from public benefit sources where permitted by law and when not covered by workers' compensation. There is no limit to the number of times the same employee may need to be excluded and, therefore, entitled to continued earnings during the period of the temporary standards.

In addition, various local governments have implemented their own paid leave provisions.

Other avenues for paid and/or unpaid leave exist under the federal Family and Medical Leave Act, California Family Rights Act, California's Healthy Workplace Healthy Family Act, and employer-provided sick pay, vacation pay, or other paid time off. Employees may also be eligible for state-provided wage replacement benefits through California's Employment Development Department.

6. Consider All Legal Requirements When Implementing Reduced Schedules, Layoffs and Closures

The ongoing pandemic has no doubt impacted employer finances and caused many to reconsider their operations. Some may find it necessary to implement reduced schedules, conduct layoffs, or close operations temporarily or permanently. When doing so, employers must consider both their contractual obligations and legal requirements. For instance, a contemplated reduction in hours and pay may be prohibited by the terms of a collective bargaining agreement or may risk losing an overtime exemption. Additionally, employers may need to delay layoffs and closings in order to comply with federal and California Worker Adjustment and Retraining Notification Acts. While employers may still pursue reduced schedules, layoffs, and closures, they should consult with legal counsel to make sure such actions are implemented in a way to mitigate exposure.

7. Monitor Ongoing Compliance with Preexisting Employment Laws

Whether employees work on-site or remotely, employers must continue to comply with all local, state, and federal employment laws. Of particular note, employers must engage in the interactive process to locate reasonable accommodations for individuals with physical or mental disabilities or medical conditions, including pregnancy. In addition to traditional accommodations such as modified workspaces or job duties, in the age of COVID-19 this might also include the provision of effective, non-restrictive alternatives to face coverings for employees exempted from using them due to a disability or medical condition. For instance, as part of the interactive process, employers may provide and permit the use of a face shield and drape or move the employee's workspace to an area where the employee will not come into contact with others to reasonably accommodate medical restrictions prohibiting the use of face coverings. For remote employees, this may include assistance with modification of workspaces and other reasonable accommodations.

Equally significant, employers must comply with all wage and hour laws. This is particularly challenging for remote employees over whom employers do not have visual supervision. Employers must monitor employee timekeeping practices to make sure nonexempt employees record all hours worked and take timely meal and rest periods. If employees work overtime, are required to work split shifts, or do not receive timely meal or rest periods, employers must have a mechanism in place to account for and pay appropriate minimum wages, overtime and double time, and premium payments. With additional requirements imposed by California's COVID-19 Supplemental Paid Sick Leave law, employers should also consult with legal counsel to confirm their wage statements comply with California law.

Employers must continue to reimburse employees for reasonable and necessary expenses incurred in the course of employment. For on-site employees, and consistent with the temporary standards, this includes the provision of face coverings and other personal protective equipment. For remote employees, this includes reimbursement for the reasonable use of their personal Internet and cell service, computers and personal devices, and other expenses incurred in the course of employment.

Finally, California passed several new employment laws in 2020. Most notably, California amended its family and medical leave law, which now applies to employers with five or more employees and contains new categories of leave. December is a good time for employers to consult with their legal counsel and update employee handbooks and related policies to comply with all federal, state, and local laws.

8. Understand New Challenges in the New Normal

Both during and following the pandemic, employees may express discomfort with certain aspects of their jobs and will likely change their expectations when it comes to the workplace. Remote work was previously something available only to certain employees. With the pandemic, however, more than half the workforce has experienced some level of remote work in 2020. It is reasonable to expect some employees may seek to make remote work permanent or may request other work modifications.

In most cases, with some exceptions, employees do not have the right to refuse to work simply because they fear infection, nor do they have an absolute right to work remotely outside of requirements imposed by COVID-19 orders. If an employee refuses to work at all or demands to work remotely, employers should first consider whether there is a medical or mental health reason requiring a reasonable accommodation or leave of absence. In addition, employers should make sure an employee's refusal to work or insistence upon working remotely is not based on a reasonable and good faith belief that the employer has created an unsafe work environment, potentially subjecting the employer to a whistleblower claim if adverse action is taken based on the employee's refusal to work or to do so at the jobsite.

If neither of these situations applies and there is no legally-protected basis for the employee's request, employers should consider whether the proposed modification is appropriate given operational and business needs. While remote work may not have been previously contemplated, if it has been successful during the pandemic and does not pose unreasonable challenges to the workplace, it might be something employers want to consider as a way to retain valuable employees, even if remote hours are combined with on-site hours. If there is no legally-protected reason for the requested modification and it does not make sense for the business or is otherwise objectionable, employers must ensure they apply their policies in a non-discriminatory manner. If modifications such as remote work are available to some employees but not others, there must be a legitimate business reason for the distinction that does not have an adverse impact on protected classes.

If employers follow these guidelines, and consult with legal counsel as necessary, they will be in a good position to move into the next stage of the pandemic and beyond. 

#817

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