FAQs — Health and Safety

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FAQ

An employee has tested positive for COVID-19. What can we do?

The employee should be sent home until released by their doctor or until they have been fever free and asymptomatic for at least 72 hours. The CDC has recently relaxed guidelines for critical infrastructure workers, as defined under the Cybersecurity and Infrastructure Security Agency, who have been previously exposed to COVID-19. The list of affected workers released by the CDC is vague and our recommendation is the employer use caution when allowing exposed employees to remain working despite exposure. In an abundance of caution, we continue to recommend that employers send home any employees who have been exposed to the virus.

When an employee is sent home, do not identify the employee by name or other information that may allow his or her identity to be discovered by co-workers or the employer could risk a violation of medical confidentiality requirements. The CDC provides guidelines recommending employees who work closely with the infected worker and who are sent home should be instructed to proceed based on the CDC Public Health Recommendations for community related exposure. These recommendations include staying home until 14 days after the last exposure, maintaining social distance, and self-monitoring for symptoms (for example fever, cough, or shortness of breath).

If an employee who has tested positive for COVID-19 I sent home, are there any health and safety precautions the employer should take?

The CDC has provided recommendations for most non-healthcare businesses where they have a suspected or confirmed COVID-19 case:

1. It is recommended that all areas used by the ill person be closed off and the employer should wait as long as long as practical before beginning cleaning and disinfection to minimize potential for exposure. If applicable, open windows, doors and other entrances and exits to increase air circulation in the area. Finally, if possible, wait up to 24 hours before beginning cleaning and disinfection.
2. All areas previously used by the suspected or infected person should be cleaned and disinfected. These includes offices, bathrooms, common areas and any other place the employee spent time. Cleaning staff should focus on frequently touched surfaces.

Can an employer require an employee to notify it if the employee has been exposed to COVID-19, have symptoms, or have tested positive for the Coronavirus?

Yes, employers should require employees who have been exposed, have tested positive, or have interacted with customers or vendors who are positive or exposed to advise the employer as soon as possible. Employees who are asymptomatic should stay at home until they are symptom free for at least 72 hours.

What steps can an employer take to help reduce the transmission of COVID-19?

It is important to have a policy and procedure detailing the employer’s response to the pandemic and setting for expectations of its employees to ensure that employees are adhering to health and safety requirements in order to either avoid exposure or reduce transmission risks. The messages employers should be sending include:

• Wash hands often with soft and water for at least 20 seconds. If soap and water are not available, use an alcohol based hand sanitizer.
• Avoid touching eyes, nose, and mouth with unwashed hands.
• Avoid closed contact with others, especially those who are sick. This includes adhering to social distancing requirements whenever practicable.
• Refrain from shaking hands with others.
• Cover your sneeze or cough with a tissue or your elbow.
• Clean and disinfect touched objects and surfaces frequently.
• Advise employees they should stay home when they are sick.

As an employer, you should be providing the following:

• Ensure that employees have ample facilities to wash their hands, and provide alcohol-based hand rubs containing at least 60% alcohol, where handwashing is not available.
• Evaluate your remote work capabilities and policies and allow for telework for all employees for whom it is practicable.
• Limit work site access to only essential workers, if possible.
• Consider staggering employee starting and departing times, including rest breaks and meal breaks, to reduce employee population and enforce social distancing requirements;
• Have a single point of contact for employees who have questions or concerns relating to the pandemic and their work;
• Regularly clean and disinfect surfaces, equipment and other elements of the work environment.

Can an employee refuse to work because of the fear of getting COVID-19?

Employees can only refuse to work if they believe they are in imminent danger. Imminent danger has been defined by the Occupational Safety and Health Act (OSHA) as “any condition or practice in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.”

In addition, the National Labor Relations Act (NLRA) Section 7 extends broad-based statutory protection to employees in both union and non-union settings to engage in “protective concerted activity from mutual aid or protection.” Such activity has been defined to include circumstances in which two or more employees act together to improve their employment terms and conditions, although it has been extended to individual action expressly undertaken on behalf of co-workers. The NLRB has offered a number of examples including “talking with one or more employees about working conditions,” “participating in a concerted refusal to work in unsafe conditions,” and “joining with co-workers to talk to the media about problems in the workplace.” The NLRB generally protects employees who fall within these categories against discipline or discharge.

As long as the employer is taking all reasonable precautions to ensure the workplace remains safe despite the threat of COVID-19, it would probably be inappropriate for an employee to refuse to work because of fear of contracting the virus.

When employees are self-quarantining in their homes when can the employee discontinue self-quarantine?

The employee should follow all direction and advice received from their medical provider or local health care official regarding the duration of their self-quarantine. If that direction or guidance is unavailable, the CDC has several options for determining when a person may end their self-quarantine. These options include:

1. Persons with COVID-19 who have symptoms and were directed to self-quarantine may discontinued that self-quarantine under the following conditions:
1. At least three days have passed since recovery defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms (for example, cough or shortness of breath); and
2. At least seven days have passed since symptoms first appeared.
2. For employees who have been tested for COVID-19 and have tested positive and have the ability to be tested to determine whether the virus has passed, may discontinue self-quarantine under the following conditions:
1. Fever is gone without the use of fever-reducing medications;
2. Improvement in respiratory symptoms; and
3. Two consecutive nasopharyngeal swab specimens collected 24 hours apart (for a total of two negative specimens). See interim guidelines for collecting, handling, and testing clinical specimens from persons under investigation (PUIs) for 2019 Novel Coronavirus for specimen collection guidance.
3. Individuals who have not had any symptoms may discontinue self-quarantine when at least seven days have passed since the date of their first positive COVID-19 diagnostic test and have had no subsequent illness. For three days following discontinuing self-quarantine, asymptomatic individuals who have tested positive for COVID-19 should continue to limit contact (stay six feet away from others) and wear a covering for their nose and mouth whenever they are in settings where people are present.

The EEOC has opined that an employer may require a doctor’s note stating the employee is fit for duty before permitting them to return to work.

What should an employer do if an employee wants to wear a medical mask or respirator in the workplace?

On April 3, the CDC issued guidance recommending the wearing of cloth face coverings in public settings where other social distancing measures were difficult to maintain, especially in areas of significant community-based transmission. The CDC recommends the use of simple cloth face coverings to slow the spread of the virus and state that the cloth face coverings can be made from home using common household materials. The face coverings recommended are not surgical masks or N95 respirators. The cloth face coverings are not subject to OSHA respiratory protection standard. In addition, there are several county health and safety orders that allow employees to wear face coverings while at work.

Given this guidance from the CDC and the recent orders from county health and safety officials, it is recommended that employers allow employees requesting the use of masks while at work be permitted.

If an employer is allowing employees to work remotely, should the employer have a written telework policy and, if so, what should it include?

We recommend that any employer who allows employees to telework in any situation, including during this pandemic, have a telework policy in place in order to manage employee expectations and to ensure that your employees are complying with wage and hour laws. Considerations for such a policy include:

• Inventory the types of equipment your employees have taken home or will need to take home in order to get their jobs done remotely. This includes computers, printers, chargers, office supplies and similar items.
• Determine whether employees can perform work on their own devices, and if so, how company use of an employee’s personal device may be compensated.
• Expectations in terms of availability including whether employees must be available during the work day, whether flexible hours will be allowed, and how workplace communications should occur.
• Ensure that employees understand time-keeping protocol and remind employees that they are to follow all time clock requirements as if they were working in the employer’s facility. This is particularly important for non-exempt employees who are still entitled to rest breaks and meal breaks under the California Labor Code even when working from home.

If a businesses’ employees are no longer working, are the employees still entitled to group health plan coverage?

Not necessarily. It is important for each employer to check their group health plan document for (or certificate of coverage if your plan is fully insured) to determine how long employees who are not actively working may remain covered by the group health plan. Once this period expires, active employee coverage must be terminated (unless the insurance carrier or self-funded plan sponsor otherwise agrees to temporarily waive applicable eligibility provisions), and a COBRA notice must be sent. If your plan is self-funded and you would like to waive applicable plan eligibility provisions, you should first make sure that any stop-loss coverage insurance carriers agreed to cover claims relating to participants who would otherwise be ineligible for coverage.

Is COVID-19 testing covered by group health insurance plans?

Yes. The Families First Coronavirus Response Act signed into law on March 18 requires group health plans to provide coverage for FDA approved COVID-19 diagnostic testing products and related items and services furnished during a provider visit.

Must an employer keep paying non-exempt employees who are not working?

Under the California Labor Code, for the most part, the answer is no. Minimum wage and overtime requirements must be paid to all non-exempt employees for all hours worked. If a non-exempt employee performed no work, he or she is typically not required to be paid.

Of course, an employer may have a legal obligation to keep paying non-exempt employees because of, for example, an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract, etc.

Must we pay exempt employees who are not working?

Generally speaking, if an exempt employee performs at least some work during the employer’s work week, the salary basis rule requires that they be paid the entire salary for that particular work week. There can be exceptions, such as a situation where the employee decides to stay home for the day and performs no work. The laws regarding the payment of a salary to exempt employees reflects the notion that salaried employees are paid for the general value of their services rather than the precise amount of time on the job. As a result, employers may not dock salaried employees pay for partial days missed. Consequently, subject to narrow exceptions, exempt employees must receive their full salary for any week in which they perform any work, regardless of the number of days or hours worked.

There are some exceptions to the workweek rule allowing for salary reductions including:

1. Is absent from work for one or more full days for personal reasons other than sickness or disability;
2. Is absent for one or more full days because of sickness or disability (including work-related accidents), if the deduction is made in accordance with a bona fide plan, policy, or practice of providing compensation for loss of salary occasioned by both sickness and disability;
3. Is absent for one or more full days due to an unpaid disciplinary suspension imposed in good faith pursuant to a written policy for infraction of workplace conduct rules, for example, written policies prohibiting sexual harassment or workplace violence;
4. The regulations do not require employers to pay an employee’s full salary in the initial or terminal week of employment. In such weeks, an employer may pay the employee a proportionate part of his salary for the time actually worked without violating the salary basis standards;
5. A reduction in an employee’s work schedule that is accompanied by a commensurate reduction in pay that does not fall below the minimum salary level. A 1998 Wage and Hour Opinion Letter No. 1905, opined that a fixed reduction in salary effective during a period when a company operates a shortened work week due to economic conditions would be a bona fide reduction and would not change an employee’s exempt status. Similarly, a Wage and Hour Opinion Letter from 1997 No. 2026, opined that an employer could reduce hours from 40 to 32 with a commensurate reduction in pay as an alternate to layoffs and a 1970 Opinion Letter which opined that the employer could reduce salaries by 20% for fixed schedule of five annually reoccurring four-day weeks did not change an employee’s exempt status. Finally, Wage and Hour Opinion Letters dated February 18, 1999 and April 30, 1975 opined that fix reductions in salaries allowed when company operates a shortened week due to economic conditions were permissible. The DLSE agreed that a reduction in the work schedule coupled with a reduction in salaries is allowed under a California law in an Opinion Letter dated August 19, 2009.

Although the DLSE Opinion Letters are not binding on the courts, they will be followed in proceedings before the California Labor Commissioner. Also, Opinion Letters reduces the risk of a court finding an otherwise exempt employee’s status to be lost when workplace situations mandate a temporary reduction in hours worked coupled with a commensurate reduction in salary.

Given the nature of the pandemic and the shelter in place orders, an employer’s decision to reduce exempt employees’ hours and a proportionate reduction in salary in order to avoid layoffs mirrors the requirements of the 2009 DLSE Opinion letter which was written in response to the economic downturn that started in 2008 and resulted in massive layoffs.

If an employer wants to reduce exempt employees work week and couple it with a commensurate reduction in salary, what guidelines should be observed?

First, it is advisable to structure any salary reduction as an advanced reduction in the weekly salary rate, and not as deductions from an established salary rate for missed work days. This means that if an employer is contemplating reducing the work week and reducing an exempt employee’s salary, the employer must notify the affected employees in writing giving them advanced notice not only of the reduction in work week, but also the reduction in salary.

Second, any combined work schedule and salary rate reductions should be in place for a substantial period of time. The Federal Department of Labor has consistently stated that short-term reductions in salaries “due to the day-to-day or week-to-week determinations of the operating requirements of the business are precisely the circumstances the salary basis test is intended to preclude.” Recent Federal DOL opinions described unlawful reductions as involving a “fixed” or “permanent” reduction in hours and pay rate. Reductions need not last forever and they may be reversed after economic conditions or the conditions necessitating the reductions improve. Beyond that, however, there is no guidance as to how briefly a reduction may be in place while still qualifying as a “fixed” or “permanent”. Given the lack of guidance, we believe it is advisable to describe partial work week furloughs as intended to continue indefinitely while unusual economic or, in this case pandemic difficulties continue.

Third, an employer must not adjust salary rates and schedules too often. This limitation likewise derives from the Federal DOL’s disapproval of reductions that are made “for short-term business needs,” or that are “occasional… and transitory.”

Finally, any reduced salary must not fall below the minimum salary rate required for exempt status - currently $4,160.00 per month in California.

What is the difference between a furlough, a layoff and a reduction in force?

All three of these describe actions that are intended to achieve cost savings by reducing a company’s payroll costs. Even though the words have been used interchangeably, their true meanings are quite different.

FURLOUGH

A furlough is considered to be an alternate to layoff. When an employer furloughs employees, it requires them to work fewer hours or to take a certain amount of unpaid time off. For example, an employer may furlough its non-exempt employees one day a week for the remainder of the year and pay them for only 32 hours instead of their normal 40 hours each week. Similarly, an employer may furlough its exempt employees by reducing the work week from five days to four days and simultaneously reducing the exempt employee’s salary commensurate with a 32-hour work week. See above questions and responses.

An employer may require all employees go on furlough, or may exclude some employees who provide essential services. Generally, the theory is to have the majority of employees share some hardship as opposed to a few employees losing their jobs completely.

Employers generally keep furloughed employees’ medical benefits in place for the length of the furlough. However, employers are reminded to consult with their benefit providers for requirements related to stopping benefits.

Furloughed workers may be entitled to unemployment insurance benefits.

Practice tip: A furlough should be structured and limited in time. If an employer furloughs workers it should have a return to work date. Indefinite furloughs are considered reductions in forces and accrued but unused vacation or PTO must be paid on the furlough date.

LAYOFF

A layoff is a temporary separation from payroll. An employee is laid off because there is not enough work for him or her to perform. The employer, however, believes that this condition will change and intends to recall the person when work again becomes available. Employees are typically able to collect unemployment benefits while on an unpaid layoff, and frequently, an employer will allow employees to maintain benefit coverage for a defined period of time as an incentive to remain available for recall. Employers oftentimes use the term lay-off and reduction in force interchangeably.

REDUCTION IN FORCE

A reduction in force (RIF) occurs when a position is eliminated without the intention of replacing it and involves a permanent cut in headcount. A layoff may turn into a RIF or the employer may choose to immediately reduce their workforce. A RIF can be accomplished by terminating employees or by means of attrition. When an employee is terminated pursuant to a reduction in force, the employer must adhere to certain legal requirements pursuant to law. Reduction in force or permanent layoffs require an employer in California to:

1. Issue the employee a final paycheck that includes all wages earned up to the date of RIF or layoff;
2. To pay out all accrued but unused vacation or paid time off (PTO);
3. The employer or the employer’s third-party administrator must send the employee required COBRA notices.

Failure to adhere to the above legal requirements subjects the employer to penalties under the law.

SEE ALSO

• FAQs: Disability and Reasonable Accommodations
• Appendix: Web Links For Local Safety Orders

REFERENCES

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