Coronavirus (COVID-19): California Compliance Concerns

Author: XpertHR Editorial Team

California declared a state of emergency on March 4, 2020, to help the state prepare for the broader spread of COVID-19. To that end, the state and many localities issued stay-at-home or shelter-in-place orders.

California has taken steps to assist employees affected by COVID-19 when it comes to protecting their safety and health, collecting unemployment insurance and temporary disability benefits and using health insurance benefits to cover COVID-19 screening and testing. In addition, California provided employers affected by COVID-19 with an extension for filing state taxes and suspended the state WARN Act notification period.

As the state begins to reopen in phases, employers may have additional obligations, such as employee recall rights.

In acting to protect their employees, employers must take care to ensure that their response to the coronavirus complies with applicable state and local laws and directives, including:

  • Paid sick leave and other leave requirements;
  • Temporary disability and paid family leave benefits;
  • Pay for exempt and nonexempt employees;
  • Safety and health regulations;
  • Workers' compensation;
  • WARN;
  • Unemployment insurance;
  • Health insurance coverage;
  • State taxes; and
  • Recall and retention rights.

State Requirements

California state law requires private employers of any size to allow eligible employees to use up to 24 hours (or three days) of paid sick leave for their own or a covered family member's health condition. The California Department of Industrial Relations (DIR) has released FAQs regarding the state paid sick leave law in light of COVID-19.

Food sector workers are entitled to COVID-19 supplemental paid sick leave (CSPSL) during any statewide stay-at-home orders issued by California's Public Health Officer. Executive Order N-51-20 applies to employers with 500 or more employees in the US, including delivery network companies and transportation network companies. A food sector worker is entitled to up to 80 hours of CSPSL if they are unable to work because: 1) they are subject to a COVID-19-related quarantine or isolation order, 2) they have been advised by a health care provider to self-quarantine or self-isolate due to COVID-19 concerns, or 3) their employer prohibits them from working due to health concerns related to the potential transmission of COVID-19. For more information on this law, see Coronavirus (COVID-19): State and Local Leave Laws.

Local Requirements

Employees working in certain California cities may have additional paid sick leave protections, such as access to a higher amount of time off. San Diego, for example, allows paid sick leave to be taken not only if an employee or a family member is sick, but also if an employee's place of business or a child's school or care provider closes due to a public health emergency. The following cities have released guidance on their existing paid sick leave laws and interaction with COVID-19: Emeryville, Oakland, San Diego and San Francisco.

Some cities and counties have also enacted temporary COVID-19-related paid sick leave laws. For example:

The Long Beach Paid Supplemental Sick Leave Ordinance provides up to 80 hours of paid supplemental sick leave to eligible employees for certain COVID-19-related reasons. The ordinance applies to employers with 500 or more employees nationally that are not required, in whole or in part, to provide paid sick leave benefits under the federal Emergency Paid Sick Leave Act. The ordinance's expiration date will be determined based on reports of the ordinance's effectiveness and ongoing necessity.

The City of Los Angeles requires employers with 500 or more employees in the city or 2,000 or more employees in the US to provide eligible employees with up to 80 hours of supplemental paid sick leave for certain COVID-19-related reasons. The Emergency Order is in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

Los Angeles County also enacted a supplemental paid sick leave ordinance for COVID-19-related reasons, which applies to employers with 500 or more employees nationally. Eligible employees are entitled to up to 80 hours of leave. The ordinance is in effect until December 31, 2020 (unless extended by the Board of Supervisors).

Oakland passed a COVID-19 Emergency Paid Sick Leave Ordinance to cover employees who are not covered by or who are inadequately covered by the federal Emergency Paid Sick Leave Act. The ordinance requires employers of any size to provide up to 80 hours of leave to eligible employees. The ordinance is in effect until December 31, 2020 (unless extended by the City Council).

San Francisco Mayor London M. Breed announced the Workers and Families First Program, which includes funding for businesses to provide an additional five days of paid sick leave to employees beyond their existing policies.

In addition, the San Francisco Public Health Emergency Leave Ordinance (PHELO) requires private employers with 500 or more employees to provide up to 80 hours of paid leave during the public health emergency related to COVID-19. PHELO expires the earlier of the end of the public health emergency or June 17, 2020 (unless extended by the Board of Supervisors).

The San Jose COVID-19 Paid Sick Leave Ordinance is applicable to employers with 500 or more employees, to the extent they are not covered by the federal Emergency Paid Sick Leave Act. The ordinance provides eligible employees with up to 80 hours of paid sick leave, and sunsets on December 31, 2020.

For more information on these laws, see Coronavirus (COVID-19): State and Local Leave Laws.

Ensure employees know their rights to paid sick leave by checking that:

Other Leave Rights

Employees in California may also be entitled to unpaid leave if they or a family member contracts the coronavirus or if their child's school closes due to the coronavirus.

Under the California Family Rights Act (CFRA), employers with 50 or more employees must provide up to 12 weeks of unpaid leave for an employee's or a covered family member's serious health condition.

Additionally, California employers with 25 or more employees must provide up to 40 hours of unpaid leave per year (limited to eight hours in a month) for a school or child care provider emergency, which includes the closure or unexpected unavailability of the school or child care provider.

Advise employees of the availability of these types of leave by:

Wage Replacement Benefits

Employees who need to take time off from work due to the coronavirus because they or a covered family member are sick or in medical quarantine may be eligible for partial wage replacement benefits under the State Disability Insurance (SDI) program. Employees can collect up to 60-70% of their average weekly earnings per week depending on income level.

The SDI program provides temporary disability insurance (TDI) benefits to employees who are unable to work due to a nonwork-related illness or injury. Benefits may be collected for up to 52 weeks. There is a one-week waiting period before an employee may collect TDI benefits. However, Governor Gavin Newsom signed an executive order waiving the waiting period for employees who are eligible for TDI benefits as a result of COVID-19. The waiver applies to the period that began January 24, 2020, through the duration of the emergency.

If an employee needs to care for a seriously ill family member, the state's Family Temporary Disability Insurance program provides up to six weeks of paid family leave (PFL) insurance benefits through the SDI program. There is no waiting period for PFL benefits.

Employers must provide employees with relevant information by:

  • Posting notice DE 1857A or DE 1858;
  • Providing pamphlets on TDI and PFL to new hires and to employees who need time off for a covered reason; and
  • Providing pamphlet DE 2320 to all terminated employees.

An employer should also consider providing employees with fuller details of their TDI and PFL rights and obligations in its employee handbook:

Wage and Hour

Due to the uncertain and rapidly changing situation surrounding COVID-19, employers may be faced with a minefield of wage-and-hour issues. The DIR answers some pay questions related to the coronavirus. For example:

If an employer decides to send hourly employees home before their shift begins or shortly after their shift starts, the employees may be entitled to show-up or reporting time pay that is at least two hours, but no more than four hours, of wages. However, reporting time pay is not available when civil authorities recommend that operations not continue or commence. Employees who make the choice to leave work early also are not entitled to reporting time pay.

Exempt employees who are sent home in the middle of the day must be paid their full weekly wages. However, employees who perform no work for a full workweek may have their weekly salary reduced. The rules vary when exempt employees take a full or partial day off due to personal reasons or due to sickness. In some situations, an employer is permitted to make a deduction from the employee's salary; otherwise, the employer may only deduct from the employee's leave bank.

Safety and Health

Under Executive Order N-51-20, employees working in any food facility must be permitted to wash their hands every 30 minutes and additionally as needed. A food facility means any operation that stores, prepares, packages, serves, vends or otherwise provides food for human consumption at the retail level. This provision will be enforced by local public health agencies.

Cal/OSHA has provided guidance to help all employers comply with safety and health regulations for protecting employees from airborne infectious diseases, such as the coronavirus. The guidance covers different industries, including:

  • Workers in general industry;
  • Health care facilities and other employers covered by the Aerosol Transmissible Diseases (ATD) Standard;
  • Agricultural employers and employees;
  • Child care programs;
  • Construction;
  • Grocery stores;
  • Logistics; and
  • Mortuaries and funeral homes.

Ensure that Cal/OSHA-required posters are prominently displayed in the workplace.

If an employee contracts COVID-19, and it is considered a recordable work-related illness, then the employer must report it on:

An employer may wish to check the California Department of Public Health for additional coronavirus updates and guidance.

Also be sure to comply with applicable safety and health obligations at the local level. For example, Los Angeles issued a Worker Protection Order covering employees providing nonmedical essential services (e.g., grocery store and other retail employees). Among other things, the order calls for a covered business to: provide, at its expense, nonmedical-grade face coverings for its employees; permit employees to wash their hands at least every 30 minutes; and implement social distancing buffers for customers, visitors and employees. The order is in effect until the end of the local emergency period.

General Guidelines on Protecting Workers From COVID-19

Cal/OSHA's interim guidelines on protecting workers from COVID-19 provide information for preventing exposure to the coronavirus. The guidelines do not impose any new legal obligations. However, the guidelines state that, for most California workplaces, adopting changes to their Injury and Illness Prevention Program (IIPP) "is mandatory since COVID-19 is widespread in the community."  California employers are required to establish and implement an IIPP to protect employees from workplace hazards, including infectious diseases such as COVID-19.

Establish Infection Prevention Measures

The guidelines recommend including the following infection prevention measures in a written IIPP when applicable to the workplace:

  • Actively encourage sick employees to stay home;
  • Immediately send employees home or to medical care, as needed, if they experience symptoms of COVID-19;
  • Ensure employees who are out ill with fever or acute respiratory symptoms do not return to work until both of the following occur:
    • At least three full days pass with no fever (without the use of fever-reducing medications) and no acute respiratory illness symptoms; and
    • At least 10 days pass since the symptoms first appeared;
  • Provide employees with paid sick leave or expanded family and medical leave if required by the Families First Coronavirus Response Act;
  • Ensure employees that return to work following an illness promptly report any recurrence of symptoms;
  • Encourage employees to telework from home when possible;
  • Practice physical distancing by cancelling in-person meetings, using video or telephonic meetings, and maintaining a distance of at least six feet between persons at the workplace when possible;
  • Provide employees with cloth face covers or encourage employees to use their own face covers for use whenever employees may be in the workplace with other persons;
  • Avoid shared workspaces (e.g., desks, offices and cubicles) and work items (e.g., phones, computers, other work tools and equipment) when possible;
  • Clean and disinfect shared workspaces and work items before and after use;
  • Establish procedures to routinely clean and disinfect commonly touched objects and surfaces such as elevator buttons, handrails, copy machines, faucets and doorknobs. Surfaces should be cleaned with soap and water prior to disinfection. These procedures should include:
    • Using disinfectants that are EPA-approved for use against the virus that causes COVID-19;
    • Providing EPA-registered disposable wipes for employees to wipe down commonly used surfaces before use;
    • Following the manufacturer's instructions for all cleaning and disinfection products (e.g., safety requirements, personal protective equipment (PPE), concentration, contact time); and
    • Ensuring there are adequate supplies to support cleaning and disinfection practices;
  • If an employee is confirmed to have COVID-19 infection:
    • Inform employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act (ADA);
    • Temporarily close the general area where the infected employee worked until cleaning is completed; and
    • Conduct deep cleaning of the entire general area where the infected employee worked and may have been, including breakrooms, restrooms and travel areas, with a cleaning agent approved for use by the EPA against coronavirus. It should ideally be performed by a professional cleaning service. Any person cleaning the area should be equipped with proper PPE; and
  • Advise employees to avoid nonessential travel if possible, and check the CDC's Traveler's Health Notices prior to travel.

For employers in industries such as retail sales or service industries, to protect employees with frequent contact with the public, arrange work and implement measures that account for the possibility that the public is a possible contamination source, including:

  • Conduct even more frequent cleaning and disinfection of surfaces touched by the public, such as credit card machines, touch screens, shopping carts and doors;
  • Protect cashiers and other workers who have frequent interaction with the public with engineering controls such as Plexiglas screens or other physical barriers, or spatial barriers of at least six feet, if feasible;
  • If exposures to the general public cannot be eliminated with engineering controls, require or encourage customers to wear face coverings, which are mandatory in some jurisdictions;
  • Schedule work to allow frequent hand washing by employees handling items (e.g., cash, credit cards, merchandise) touched by members of the public;
  • Enforce physical distancing by limiting the number of customers in retail space;
  • Ask customers to take precautions such as only touching items they intend to purchase, and provide hand sanitizer stations; and
  • Provide workers who handle items touched by the public with PPE (e.g., disposable gloves).

Provide Employee Training

The Cal/OSHA guidelines further recommend providing training, in a language that is readily understandable by all employees, on the following topics:

  • General description of COVID-19, symptoms, when to seek medical attention, how to prevent its spread and the employer's procedures for preventing its spread at the workplace;
  • How an infected person can spread COVID-19 to others even if they are not sick;
  • How to prevent the spread of COVID-19 by using cloth face covers, including:
    • CDC guidelines that everyone should use cloth face covers when around other persons;
    • How cloth face covers can help protect persons around the user when combined with physical distancing and frequent hand washing;
    • Information that cloth face covers are not protective equipment and do not protect the person wearing a cloth face cover from COVID-19; and
    • Instructions on washing and sanitizing hands before and after using face coverings, which should be washed after each shift;
  • Cough and sneeze etiquette;
  • Washing hands with soap and water for at least 20 seconds, after interacting with other persons and after contacting shared surfaces or objects;
  • Avoiding touching eyes, nose and mouth with unwashed hands;
  • Avoiding sharing personal items with co-workers (e.g., dishes, cups, utensils, towels);
  • Providing tissues, no-touch disposal trash cans and hand sanitizer for employee use; and
  • Safely using cleaners and disinfectants, which includes:
    • The hazards of the cleaners and disinfectants used at the worksite;
    • Wearing PPE (such as gloves); and
    • Ensuring cleaners and disinfectants are used in a manner that does not endanger employees.

Comply With Additional Regulations

The guidelines also remind employers that the following Cal/OSHA regulations apply to all employers during this time:

  • Washing facilities: Regardless of COVID-19 risk, all employers must provide washing facilities that have an adequate supply of suitable cleansing agents, water and single-use towels or blowers; and
  • Personal protective equipment: Employers must conduct a hazard assessment to determine if any PPE is needed to protect employees from hazards that are present or are likely to be present in the workplace. Employers must select and provide employees with properly fitting and sanitary PPE that will effectively protect them against these hazards.

Workers' Compensation

Employees who contract COVID-19 while on the job may be eligible to receive workers' compensation benefits. Under Executive Order N-62-20, any COVID-19-related illness will be presumed to arise out of and in the course of employment for workers' compensation purposes if:

  • The employee tested positive for or was diagnosed with COVID-19 within 14 days after a day on or after March 19, 2020, that the employee worked at their place of employment at the employer's direction;
  • The employee's place of employment was not the employee's home or residence; and
  • A diagnosis of COVID-19 was done by a California-licensed physician and was confirmed by further testing within 30 days of the date of the diagnosis.

This presumption applies to dates of injury occurring through July 5, 2020.

The Division of Workers' Compensation (DWC) provides general information on workers' compensation and COVID-19's effects on DWC services.

Make sure employees know their workers' compensation rights by providing:

WARN

California suspended the 60-day notice requirement under the state's Worker Adjustment and Retraining Notification Act (Cal-WARN Act) for an employer that orders a mass layoff, relocation or termination that is caused by COVID-19-related "business circumstances that were not reasonably foreseeable as of the time that notice would have been required." The suspension applies to the period that began March 4, 2020, through the duration of the emergency.

According to the executive order, an employer must still provide the required written notice, giving as much notice as is practicable and stating the basis for reducing the notification period. In addition, written notices provided after March 17 must state: "If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at labor.ca.gov/coronavirus2019." The Department of Industrial Relations provides guidance on the order.

Unemployment Benefits

Employees may be entitled to unemployment insurance (UI) benefits if they are laid off due to a lack of work caused by the coronavirus.

Governor Newsom signed an executive order waiving the one-week waiting period before an employee can collect UI benefits for employees who are unemployed as a result of COVID-19 and are otherwise eligible for UI benefits. The waiver applies to the period that began January 24, 2020, through the duration of the emergency.

Employers can apply for the UI Work Sharing Program if reduced production, services or other conditions cause them to seek an alternative to layoffs. The program can help an employer:

  • Minimize or eliminate the need for layoffs;
  • Keep trained employees and quickly prepare when business conditions improve; and
  • Avoid the cost of recruiting, hiring and training new employees.

Employers planning a closure or major layoffs as a result of the coronavirus can meet with Rapid Response teams to discuss their needs, help avert potential layoffs and provide immediate on-site services to assist employees facing job losses.

Employers must provide employees with relevant UI information by:

Health Insurance

To ensure that cost does not create a barrier for consumers receiving medically necessary screening and testing for COVID-19, the California Department of Insurance (CDI) issued a bulletin to insurers that provide commercial health insurance coverage directing them to waive cost-sharing amounts (e.g., co-pays, deductibles, co-insurance) for all medically necessary screening and testing for COVID-19, including hospital, emergency department, urgent care and provider office visits where the purpose of the visit is to be screened and/or tested for COVID-19. The bulletin remains in effect until further notice.

Similarly, all commercial and Medi-Cal health plans regulated by the Department of Managed Health Care were also directed to waive cost-sharing amounts for all medically necessary COVID-19 screening and testing.

State Taxes

Employers have a slight reprieve from filing state taxes. The Governor's executive order delayed the deadline for state tax filing by 60 days for businesses that are unable to file on time based on compliance with public health requirements related to COVID-19.

Recall and Retention Rights

Long Beach

The City of Long Beach passed the Worker Recall Ordinance and the Worker Retention Ordinance, both effective June 22, 2020. The ordinances apply to:

  • Commercial property employers (that provide janitorial services and employ 25 or more employees); and
  • Hotel employers (that employ 25 or more employees who provide services at the hotel in conjunction with the hotel's purpose).

The Worker Recall Ordinance applies to employees who were laid off on or after March 4, 2020, as a result of a lack of business, a reduction in workforce, bankruptcy or other economic, nondisciplinary reason. The laid off employee must have worked at least two hours in a particular week and at least six months for a covered employer.

A covered employer must make a written offer to laid off employees of all job position that become available after June 22, 2020, for which the employee is qualified. The employer may mail, email or text the offer. The employee must be provided with at least five business days to accept or decline the offer.

The Worker Retention Ordinance protects workers when a change in ownership or control occurs as a result of the COVID-19 pandemic. The ordinance applies to workers who worked for the incumbent business employer for at least six months and who worked on or after March 4, 2020, and prior to the execution of a transfer document changing control of the business to a successor business employer.

The incumbent business employer must, within five business days after executing the transfer document, conspicuously post a written notice of the change in control where employees and applicants can see it. This notice must remain posted for six months after the business is open to the public under the successor business employer.

Within 15 days after executing the transfer document, the incumbent business employer must provide the successor business employer with each worker's name, address, date of hire and occupation classification. The successor business employer must hire from this list of workers beginning upon the execution of the transfer document and continuing for six months after the business is open to the public under the successor business employer.

Workers hired under the ordinance must be retained for at least 90 days and may not be terminated without cause during the 90-day period. The successor business employer must provide written performance evaluations at the end of the 90-day period, and consider offering continued employment to workers with satisfactory performance.

For more information on these ordinances, see Coronavirus (COVID-19): Furloughs and Temporary Layoffs.

Los Angeles

The City of Los Angeles passed the Right of Recall Ordinance and the Worker Retention Ordinance, both effective June 14, 2020. The ordinances apply to:

  • Airport employers;
  • Commercial property employers (that employ 25 or more janitorial, maintenance or security service workers);
  • Event center employers (with more than 50,000 square feet or at least 1,000 seats); and
  • Hotel employers (with 50 or guest rooms or gross receipts in 2019 exceeding $5 million).

The Right of Recall Ordinance applies to employees who were laid off on or after March 4, 2020, as a result of a lack of business, a reduction in workforce or another economic, nondisciplinary reason. The laid off worker must have worked at least two hours in a particular week and at least six months for a covered employer.

A covered employer must make a written offer to a laid off worker of any position that is or becomes available after June 14, 2020, for which the employee is qualified. The employer may mail, email or text the offer. The employee must be provided with at least five business days to accept or decline the offer.

The Worker Retention Ordinance protects workers when a change in ownership occurs within two years of the state's declared state of emergency resulting from the COVID-19 pandemic. The ordinance applies to workers who worked for the incumbent business employer for at least six months and who worked on or after March 4, 2020, and prior to the execution of a transfer document changing control of the business to a successor business employer.

The incumbent business employer must, within five business days after executing the transfer document, conspicuously post a written notice of the change in control where employees and applicants can see it. This notice must remain posted for six months after the business is open to the public under the successor business employer.

Within 15 days after executing the transfer document, the incumbent business employer must provide the successor business employer with each worker's name, address, date of hire and occupation classification. The successor business employer must hire from this list of workers beginning upon the execution of the transfer document and continuing for six months after the business is open to the public under the successor business employer.

Workers hired under the ordinance must be retained for at least 90 days and may not be terminated without cause during the 90-day period. The successor business employer must provide written performance evaluations at the end of the 90-day period, and consider offering continued employment to workers with satisfactory performance.

For more information on these ordinances, see Coronavirus (COVID-19): Furloughs and Temporary Layoffs.