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:

  • Discrimination and retaliation protections;
  • 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.

Discrimination and Retaliation Protections

At the state and local level, eligible employees are protected from discrimination and retaliation for taking leave related to COVID-19 under temporary supplemental paid sick leave laws. However, Los Angeles County and San Francisco have gone a step further to protect workers from COVID-19-related discrimination and retaliation.

Los Angeles County

The Preventing Retaliation for Reporting Public Health Violations Ordinance prohibits retaliation against employees who report or discuss noncompliance with any COVID-19-related Health Officer Order (i.e., any order or protocol issued by the Los Angeles County Health Officer). The ordinance took effect November 24, 2020

The ordinance applies to any employee who performs any work within the geographic boundaries of the County of Los Angeles, excluding work performed in cities with their own Health Officer.

An employer means any person, association, organization, partnership, business trust, limited liability company or corporation (including a corporate officer or executive) who, directly or indirectly or through an agent or any other person (including through the services of a temporary service or staffing agency or similar entity), employs any employee or exercises control over an employee's wages, hours, duties or working conditions.

Protected Rights

An employer is prohibited from discriminating in any manner or taking adverse action (e.g., termination, constructive termination, demotion, pay reduction or reduction in hours) against any employee in retaliation for:

  • Reporting to or discussing with the County of Los Angeles, its Department of Public Health, any other County departments or designees, non-County agencies or entities, the employee's employer, other employees or Public Health Councils an employer's or another employee's perceived noncompliance with a Health Officer Order or any other part of the Los Angeles County Health and Safety Code;
  • Belonging to or forming a Public Health Council;
  • Informing any employee about their rights under the ordinance or assisting them in exercising their rights; or
  • Exercising any right provided by the ordinance.

The protections apply to an employee who acted in good faith, even if they are mistaken.

An employer that takes adverse action against an employee within 90 days of the employee's exercise of protected rights will be presumed to have engaged in illegal retaliation. However, the employer may provide evidence to rebut this presumption.

For more information, see Employee Discipline: California.

San Francisco

The COVID-19 Employment Protections Emergency Ordinance protects workers and applicants if, due to COVID-19 symptoms or exposure, they:

  • Test positive for COVID-19;
  • Are isolating or quarantining; or
  • Have previously isolated or quarantined.

The ordinance took effect September 11, 2020, and expires January 9, 2021, unless reenacted.

An employer covered by the ordinance means any person, association, organization, partnership, business trust, limited liability company or corporation (including corporate officers or executives) who directly or indirectly or through an agent or any other person (including through the services of a temporary services or staffing agency or similar entity) employs, contracts with or hires a worker.

A worker means any person providing labor or services for remuneration within the geographic boundaries of San Francisco who is either:

  • An employee (including a part-time, temporary employee); or
  • An independent contractor or other person who has performed at least 16 hours of labor or services for the employer, which are provided personally by the individual independent contractor or other person based on the intellectual or manual efforts of the individual rather than the sale of a product.

An applicant means a person who has or may apply or otherwise seek to provide labor or services for remuneration as a worker for an employer. This includes an employer's former workers being considered for employment or contracting following a furlough, layoff or other separation.

Worker Protections

In relation to current employees, it is unlawful for an employer to:

  • Terminate, threaten to terminate, demote, suspend, discipline, reduce employee benefits or in any manner discriminate or take adverse action against any worker who is absent from or unable to work, or who requests time off work, because the worker tested positive for COVID-19 or is isolating or quarantining, or has previously isolated or quarantined, due to COVID-19 symptoms or exposure, without regard to whether the worker would otherwise be eligible to take paid or unpaid leave under any employer benefit program or any other local, state, or federal protection;
  • Count a worker's absence from or inability to work because the worker tested positive for COVID-19 or is isolating or quarantining, or has previously isolated or quarantined, due to COVID-19 symptoms or exposure as an absence that may lead to or result in discipline, termination, demotion, suspension or any other adverse action, without regard to whether the worker would otherwise be eligible to take paid or unpaid leave; or
  • Take any adverse action against any worker because the worker tested positive for COVID-19 or is perceived to have been infected with COVID-19, without regard to whether the worker takes paid or unpaid leave. However, an employer must not allow a worker who is experiencing any sign or symptom of COVID-19, or who has confirmed or suspected COVID-19 infection, to return to work onsite until the worker may do so consistent with the Local Health Officer's return-to-work guidance.

An employer that takes any adverse action against a worker within 90 days of the worker's absence or request for time off will be presumed to have violated the ordinance. However, the employer may rebut the presumption by establishing a basis for the adverse action (e.g., the worker's performance or misconduct).

An employer is permitted to require a worker to identify the general basis for their absence from or inability to work, or their request to take time off, but may not require the disclosure of health information or other documentation (e.g., a doctor's note).

Applicant Protections

It is unlawful for an employer to rescind an offer to employ or contract with an applicant, or to make a decision to employ or contract with an applicant, based in whole or in part on whether the applicant tested positive for COVID-19 or is isolating or quarantining, or has previously isolated or quarantined, due to COVID-19 symptoms or exposure.

If an applicant is unable to start work because they tested positive for COVID-19 or are isolating or quarantining due to COVID-19 symptoms or exposure, an employer must reasonably accommodate the applicant by scheduling a later start date where reasonably feasible.

Other Protections

The ordinance prohibits an employer from:

  • Interfering with, restraining or denying the exercise of, or the attempt to exercise, any right protected under the ordinance; and
  • Taking any adverse action against any worker or applicant in retaliation for exercising rights protected under the ordinance, including requesting or taking leave.

These protections apply to individuals who mistakenly but in good faith allege violations of the ordinance.

Enforcement and Penalties

A worker, applicant or any other person may report a suspected violation to the Office of Labor Standards Enforcement (OLSE).

If the OLSE has reason to believe that a violation has occurred, it may order any appropriate temporary or interim relief to mitigate the violation or maintain the status quo pending completion of a full investigation or hearing.

An employer that violates the ordinance may be ordered to:

  • Hire an applicant;
  • Reinstate a worker;
  • Pay lost wages to a worker or an applicant;
  • Pay an administrative penalty (up to $1,000 for the first violation, $5,000 for the second violation and $10,000 for the third and subsequent violations); and
  • Pay the city's costs of investigating and remedying the violation.

An employer may file an appeal within 15 days of a determination.

Interaction With Other Laws

The protections provided by this ordinance are separate from and in addition to other employment, nondiscrimination and disability protections in city, state and federal law. This ordinance is not intended to limit the operation of any other city law. If there is any overlap in application between this ordinance and another city law, both laws must be followed. However, if there is a conflict between the two that cannot be reconciled, the law providing greater protection to the worker takes precedence.

Nothing in this ordinance should be interpreted or applied so as to create any right, requirement, power or duty in conflict with federal or state law.

State Requirements

California's permanent paid sick leave 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) released FAQs regarding the state paid sick leave law in light of COVID-19. The state subsequently passed temporary paid sick leave requirements for COVID-19-related reasons.

Effective April 16, 2020, food sector workers are entitled to COVID-19 supplemental paid sick leave (CSPSL). 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. The order was subsequently amended and codified by +2019 Bill Text CA A.B. 1867, effective September 9, 2020, and retroactive to April 16, 2020.

AB 1867 also extends CSPSL to non-food-sector workers employed by employers with 500 or more employees in the US and to health care providers and emergency responders whose employers chose to exclude them from emergency paid sick leave under the federal Families First Coronavirus Response Act (FFCRA), beginning no later than September 19, 2020. An eligible employee is entitled to up to 80 hours of CSPSL for the same reasons that apply to food sector workers.

CSPSL is effective until December 31, 2020, or upon the expiration of any extension of the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act (FFCRA).

For more information on these laws, 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).

The City of Sacramento Worker Protection, Health and Safety Act requires employers with 500 or more employees nationally to provide eligible employees with up to 80 hours of supplemental paid sick leave for COVID-19-related reasons. The Act sunsets December 31, 2020.

The Sacramento County Worker Protection, Health and Safety Act also requires employers with 500 or more employees nationally to provide eligible employees (who work in the unincorporated area of the county) with up to 80 hours of supplemental paid sick leave for COVID-19-related reasons. The Act sunsets December 31, 2020.

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 December 15, 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.

San Mateo County passed an Emergency Ordinance requiring employers with 500 or more employees in any US state, the District of Columbia or any US territory or possession to provide up to 80 hours of supplemental paid sick leave to eligible employees who work in the unincorporated areas of the county. The ordinance sunsets on December 31, 2020.

Santa Rosa adopted a temporary paid sick leave ordinance covering private employers with 500 or more employees nationally. An eligible employee who performs "allowed or essential work" (as determined by the Sonoma County Public Health Officer) is entitled to up to 80 hours of paid sick leave. The ordinance sunsets on December 31, 2020.

The Sonoma County supplemental paid sick leave ordinance covers private employers with 500 or more employees either locally or nationally. Eligible employees are entitled to up to 80 hours of leave for COVID-19-related reasons. The ordinance runs concurrently with the Families First Coronavirus Response Act (FFCRA), and sunsets on December 31, 2020, unless the FFCRA is extended.

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.

Child Labor Work Permits Documentation

California law requires that a minor, accompanied by a parent or guardian, submit their application for a child labor work permit in person before the individual authorized to issue the permit (usually a school principal or administrator).

Effective September 11, 2020, applications may be submitted electronically if:

  • The minor's school is physically closed for an extended period of time because of a natural disaster, pandemic or other emergency;
  • The minor's application is complete; and
  • The minor, accompanied by their parent or guardian, has attended a video conference with the person issuing the work permit.

Safety and Health

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.

Food Facilities

Under Executive Order N-51-20 (subsequently codified at +Cal Health & Saf Code ยง 113963), 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.

Emergency Regulations

Cal/OSHA adopted emergency regulations for protecting employees from COVID-19. The regulations address COVID-19 Prevention Programs; multiple COVID-19 infections, COVID-19 outbreaks and major COVID-19 outbreaks; and COVID-19 prevention in employer-provided transportation and housing.

The regulations, which expire October 2, 2021, apply to all employees and workplaces in California, except workplaces where there is only one employee who does not have contact with anyone else, employees working from home and employees covered by the ADT Standard.

COVID-19 Prevention Program

Employers are required to establish, implement and maintain an effective, written COVID-19 Prevention Program that addresses the following:

  • System for communicating, including:
    • Employees communicating COVID-19 symptoms, exposures and workplace hazards; and
    • Employers providing information on accommodations, access to COVID-19 testing, COVID-19 workplace hazards and the employer's COVID-19 policies and procedures;
  • Identification and evaluation of COVID-19 hazards, including by:
    • Getting employee input;
    • Implementing policies and procedures for responding to COVID-19 cases;
    • Determining where employees may have been exposed; and
    • Evaluating existing COVID-19 prevention controls;
  • Investigating and responding to COVID-19 cases in the workplace, including:
    • Determining who may have been exposed and notifying them within one business day;
    • Offering COVID-19 testing at no cost to employees; and
    • Maintaining confidentiality;
  • Correction of COVID-19 hazards in a timely manner;
  • Employee training and instruction on:
    • The employer's COVID-19 policies and procedures;
    • Applicable COVID-19-related benefits;
    • How COVID-19 may be transmitted; and
    • Methods for reducing transmission;
  • Physical distancing;
  • Face coverings;
  • Other engineering and administrative controls, and personal protective equipment, such as:
    • Installing solid partitions;
    • Maximizing the quantity of outside air;
    • Implementing cleaning and disinfecting procedures;
    • Evaluating hand-washing facilities; and
    • Providing personal protective equipment as needed;
  • Reporting, recordkeeping and access;
  • Exclusion of COVID-19 cases from the workplace; and
  • Return-to-work criteria.

Multiple COVID-19 Infections, COVID-19 Outbreaks and Major COVID-19 Outbreaks

An employer must take certain steps when: 1) a place of employment has been identified by a local health department as the location of a COVID-19 outbreak or there are three or more COVID-19 cases in an exposed workplace within a 14-day period; or 2) there are 20 or more COVID-19 cases in an exposed workplace within a 14-day period. The regulations apply until there are no new COVID-19 cases detected in the workplace for a 14-day period. Steps include:

  • Providing free COVID-19 testing;
  • Excluding from the workplace employees with, or exposed to, COVID-19;
  • Investigating workplace COVID-19 illness;
  • Correcting COVID-19 hazards; and
  • Notifying the local health department.

COVID-19 Prevention in Employer-Provided Transportation and Housing

The regulations also set out numerous infection prevention measures in employer-provided housing and transportation to and from work. These requirements include measures relating to screening, physical distancing, ventilation and cleaning.

For more information on the emergency regulations, see Coronavirus (COVID-19): Health and Safety.

Guidance for Using Face Coverings

The California Department of Public Health (CDPH) issued guidance that mandates the use of cloth face coverings when individuals are in high-risk situations. This means that employees who are "engaged in work, whether at the workplace or off-site" must wear face coverings when:

  • Interacting in-person with any member of the public;
  • Working in any space visited by members of the public, regardless of whether anyone from the public is present at the time;
  • Working in any space where food is prepared or packaged for sale or distribution to others;
  • Working in or walking through common areas, such as hallways, stairways, elevators and parking facilities; and
  • In any room or enclosed area where other people (except for members of the person's own household or residence) are present when unable to physically distance.

Exceptions apply, including:

  • For individuals with a medical condition, mental health condition or disability that prevents wearing a face covering;
  • When the ability to see the mouth is essential for communication;
  • Individuals for whom wearing a face covering would create a risk to the person related to their work, as determined by local, state or federal regulators or workplace safety guidelines; and
  • For employees who are working outside when alone or when able to maintain social distance.

Those who are exempted from wearing a face covering due to a medical condition who work in a job involving regular contact with others should wear a nonrestrictive alternative, such as a face shield with a drape on the bottom edge, as long as their condition permits it.

The CDPH states that this guidance does not substitute for existing guidance about social distancing and handwashing.

Notice and Posting Requirements

Beginning January 1, 2021, California employers are required to:

Also, effective January 1, 2021, Cal/OSHA may issue a citation alleging a serious violation without requiring the agency to solicit information rebutting the presumption of a serious violation. Accordingly, Cal/OSHA would not need to notify an employer 15 days before issuing a COVID-19-related serious violation.

+2019 Bill Text CA A.B. 685.

Local Requirements

Also be sure to comply with applicable safety and health obligations at the local level. For example:

The City of 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.

The Los Angeles County COVID-19 Worker and Consumer Safety Ordinance requires retail grocery stores, retail drug stores and food-delivery platforms to provide their workers with the necessary supplies, tools, equipment and safety practices to protect the workers and the public they are serving. The Ordinance sunsets when the state or local emergency order is lifted.

Los Angeles County voted on November 10, 2020, to create the nation's first Public Health Councils (PHCs) program to help stem the spread of COVID-19. Through this program, employees will help to monitor employer compliance with Los Angeles County Health Officer Orders. Employee participation is voluntary, and employees who participate are protected from retaliation. Employers are encouraged, but not required, to pay employees for their time participating on PHCs, to allow PHCs to use their business premises for PHCs activities and to cooperate with certified worker organizations in making this opportunity known to their employees.

The City of Sacramento Worker Protection, Health and Safety Act requires employers to implement, as applicable, certain physical-distancing, mitigation and cleaning protocols and practices, such as daily cleaning of high-touch areas; providing employees with face coverings and access to regular hand washing with soap, hand sanitizer and disinfecting wipes; and establishing protocols for action upon discovering the workplace may have been exposed to COVID-19. Employers must inform all employees of the required protocols and practices, in writing, in English and any language spoken by at least 10% of the employees who are at the work site. The Act sunsets December 31, 2020.

The Sacramento County Worker Protection, Health and Safety Act likewise requires employers (doing business in the unincorporated area of the county) to implement, as applicable, certain physical-distancing, mitigation and cleaning protocols and practices, such as daily cleaning of high-touch areas; providing employees with face coverings and access to regular hand washing with soap, hand sanitizer and disinfecting wipes; and establishing protocols for action upon discovering the workplace may have been exposed to COVID-19. Employers must inform all employees of the required protocols and practices, in writing, in English and any language spoken by at least 10% of the employees who are at the work site. The Act sunsets December 31, 2020.

San Francisco passed a temporary Healthy Buildings Ordinance, which was subsequently codified into law. The permanent ordinance, effective November 9, 2020, establishes cleaning and disease prevention standards and practices in large commercial office buildings (having more than 50,000 square feet of office space in one building or a set of buildings) and tourist hotels to help contain COVID-19 and other contagious public health threats. Employees assigned cleaning duties must be trained on the ordinance's requirements and more, and the training time must be paid. For more information, see HR and Workplace Safety: California.

Workers' Compensation

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

Employees who contract COVID-19 while on the job may be eligible to receive workers' compensation benefits. Under Executive Order N-62-20 (subsequently codified by +2019 Bill Text CA S.B. 1159), 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, and on or before July 5, 2020, that the employee worked at their place of employment (other than the employee's residence) at the employer's direction; and
  • The COVID-19 diagnosis was done by a California-licensed physician and was confirmed by further testing within 30 days of the date of the diagnosis.

SB 1159 includes provisions applicable to employees whose place of employment experiences an outbreak of COVID-19 and to first responders and health care workers. There are also notification requirements applicable to all employers. See Workers' Compensation: California.

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.

Oakland

Oakland passed the Hospitality and Travel Worker Right to Recall Ordinance, effective August 15, 2020. The ordinance applies to:

  • Airport hospitality operations;
  • Airport service providers;
  • Event centers (with more than 50,000 square feet or 5,000 seats);
  • Hotels (with 50 or more guest rooms); and
  • Restaurants (that employ more than 500 employees, regardless of their location).

The ordinance applies to employees who were employed by the employer for at least six months in the 12 months preceding January 31, 2020, and who were laid off after January 31, 2020, due to an economic, nondisciplinary reason (e.g., lack of business due to a government-issued stay-at-home order, bankruptcy, reduction in force). The laid-off worker must have worked at least two hours in a particular week within the city and be entitled to minimum wage under state l aw.

A covered employer must make a written offer to its laid-off workers of all positions that become available after August 15, 2020, for which the employee is qualified. The employer must send the offer by registered mail, and by email and text message if it has the information. The employee must be provided at least 10 days to accept or decline the offer.

An employer that declines to recall an employee due to a lack of qualifications must notify the employee in writing within 30 days.

When a change in control occurs (e.g., sale, assignment or transfer of assets), the incumbent employer must provide the successor employer with each laid-off workers name, address, email address, phone number, date of hire and employment classification within 15 days after executing the transfer document.

The successor employer must comply with the ordinance as to the incumbent's laid off employees for 120 days after the execution of the transfer document. The successor must retain the employees for at least 45 days, unless it has good cause for termination. At the end of the 45-day period, the successor employer must provide written performance evaluations to each employee, and consider offering continued employment to workers with satisfactory performance.

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

San Diego

San Diego passed the COVID-19 Worker Recall and Retention Ordinance, effective September 8, 2020.

Recall rights. The recall provisions apply to:

  • Commercial property employers (that employ 25 or more janitorial, maintenance or security service employees);
  • Hotel employers (with 200 or more guest rooms); and
  • Event center employers (with more than 50,000 square feet or 5,000 seats).

Recall rights apply to employees who were separated from active service, or were not scheduled for customary seasonal work, on or after March 4, 2020, due to a government shutdown order, lack of business, a reduction in force or another economic, nondisciplinary reason. The laid-off employee must have worked at least two hours within San Diego in a particular week and at least six months (three months for an event center employee) in the 12 months preceding March 4, 2020. Managers, supervisors and confidential employees are not covered.

A covered employer must make a written offer to a laid-off employee of any position that becomes available after September 8, 2020, for which the employee is qualified. The employer must mail the offer, and must also email and text the offer if it has the employee's information. The employee must be provided with at least three business days to accept or decline the offer.

If the employer declines to rehire a laid-off employee due to a lack of qualifications and hires someone else, it must notify the employee in writing of the reasons for its decision within 30 days.

Retention rights. The retention provisions apply to commercial property employers and hotel employers.

Eligible employees are those who worked for an 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 or successor 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 eligible employee's name, address, date of hire and job 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.

Employees 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 this ordinance, see Coronavirus (COVID-19): Furloughs and Temporary Layoffs.

San Francisco

San Francisco passed the Back to Work Emergency Ordinance, effective July 3, 2020. The ordinance applies to for-profit and non-profit employers in San Francisco, beginning on or after February 25, 2020, that employed or employs 100 or more employees as of the earliest date that the employer separated or separates one or more employees that subsequently resulted or results in a layoff. The ordinance does not apply to public agencies and employers in the health care industry.

A layoff means a separation of 10 or more employees during any 30-day period, beginning on or after February 25, 2020, that was caused by the employer's lack of funds or lack of work for employees resulting from the COVID-19 public health emergency or any shelter-in-place order.

An eligible worker must have been employed for at least 90 days in the preceding calendar year and been terminated due to a covered layoff.

Notice requirements. An employer must provide written notice of the layoff and right to reemployment to: all existing eligible workers at or before the layoff takes effect, and all eligible workers who were laid off before the ordinance's effective date, by August 2, 2020. An employer must also notify the Office of Economic and Workforce Development in writing of: layoffs, all offers of reemployment, and employee acceptances or rejections of such offers.

Reemployment obligations. When looking to fill a position formerly held be an eligible worker, or that is substantially similar to an eligible worker's former position, an employer must offer the position to the eligible worker before offering it to someone else. Exceptions apply.

The employer must make good-faith efforts to contact the employee by telephone and email, or certified mail or courier delivery, of a reemployment offer. The employee must accept the offer in writing within the specified time frames.

Reasonable accommodations. An eligible worker is entitled to reasonable accommodation if a family care hardship impacts their ability to perform a job duty or satisfy a job requirement. A family care hardship occurs when an employee is unable to work due to either: (1) a need to care for their child whose school or place of care has been closed, or whose child care provider is unavailable, as a result of the public health emergency, and no other suitable person is available to care for the child during the period of such leave; or (2) or any other grounds for which a person may use paid sick leave to care for someone other than themselves. An accommodation may include modifying work hours or permitting telework.

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