COVID-19

COVID-19 Employment updates

More to come...

We are monitoring the very fluid state of our nation and how this impacts employers from an HR and Payroll perspective. We are sharing here our client and partner FYI email blasts. 


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TPPS FYI May 5, 2020

It’s been nearly seven weeks since California was put on a state-wide shelter-in-place order. Almost every aspect of our world has changed. COVID-19 has brought uncertainty, change, fear, and loss. Though it’s also brought new perspectives on the personal and professional fronts, and a slight reprieve on the environment. And guess what? It’s time to start looking to the future and focusing on getting back to business. On the HR front, I’d like to say we have your game plan ready to go, all dialed in, but just like our many conversations over the past few months – this is all new and we are all learning together. 


What the return to work will look like depends largely on what our state and local guidelines tell us. Each business is unique and therefore an assessment of what the return to work action plan should include will depend on each business. We encourage each client to dedicate time to assess what makes sense for their business and where they see themselves falling in our government’s view of who is essential, who is low-risk, and who gets to open their doors, when. As of today, Governor Newsom said that we could be reopening certain businesses as soon as Friday!! For the City of San Diego, Mayor Faulconer said today, that as soon as the State permits we will start getting low-risk businesses open as long as they can follow the City’s RECOVER Advisor Group’s forthcoming Business Safety Framework. Across the country we are seeing other states already reopen. It is coming! 


So, what can we tell you? When preparing your plan, we suggest you consider the following: 


1. First make sure you understand where you fall in your local guidelines in terms of being able to bring employees back into the business. You really can’t make any solid plans until we know what’s permitted. 


2. Understand your local and industry-specific requirements for COVID related personal protective equipment, and other safety gear, and start to source it (e.g., masks, hand washing stations, sanitizer, additional cleaning services, etc.). The CDC and OSHA (or Cal-OSHA) are great resources for this information. 


3. It is likely we will see a phased in approach. Decide who will be coming back to work first. For example if you have an office where 20 people normally work together, but local guidelines only allow us to have 10 people per office for a period of time, you’ll need to decide what mix of staff are critical in the office, vs which staff can continue to work remotely or remain furloughed. 

Also, if your workload remains low, you may not have a business need to bring all staff back right away. These are hard decisions, but critical for the long-term health of your business. 


4. Remember that despite what seems like the whole world changing, the basics of employment remain. Your employment decisions need to be based on bona-fide business reasons and needs. 


Right now, we know that a lot of parents have children at home, being homeschooled, and without alternative day care. But do not assume that employees with children can’t come back to work and therefore put them on the B list. Making adverse employment decisions based on an individual’s status as a parent is discriminatory. 


On that note, this is a real concern. Schools are still closed, day cares are mostly shut down, and parents have children at home with no other supervision. Consider sending a survey out to your staff asking what accommodations they may need, if any, as we work to resume business operations. You may find other employees also have needs for accommodations that have nothing to do with children – remember a lot has changed. 


Please be advised, the intention of the survey is not that you are committing to accommodating every person, but it allows you to gather the data to make your plans in a non-discriminatory manner. NOTE: these surveys should be carefully crafted so you don’t ask questions, directly or indirectly, that could be deemed inappropriate. They should also be shared only with a need to know. 


5. Some employers may be considering whether they should be testing or screening employees as they come into the workplace. As stated above, the standard rules of employment remain. This means that we need to look to the EEOC, ADA, and our State Labor and Employment laws for guidance. 

Employers like Amazon are going all in and testing employees who exhibit signs of COVID-19. While others are considering approaches like taking employees temperatures as they come into work each day. 


The EEOC has stated that employers are permitted to take temperatures in light of COVID-19. Also, under the ADA an employer is permitted to conduct medical tests if job related and consistent with business necessity. However, as you can imagine there are very specific guidelines around doing such. We strongly suggest you evaluate whether or not the potential benefit outweighs the risk. Don’t take that as us not respecting the importance of keeping the virus at bay. Rather, many studies have shown that the disease is spread by perfectly healthy people exhibiting no signs of the illness. Therefore, taking on the somewhat risky and burdensome task of taking temperatures every day of every employee, is not a guarantee that you will avoid having COVID enter your workplace. Also, obtaining COVID antibodies testing is still very difficult, and it’s unlikely that most businesses will be able to obtain tests in short order. 


6. For employees who have been off work due to being ill from COVID, decide whether you will require a doctor’s release to allow the employee to return to the workplace. While you can ask, the likelihood of the employee being able to obtain a release from their doctor is low. Many are suggesting following the CDCs guidelinesfor those who have been ill with COVID-19. 


7. Don’t forget about privacy either. If you are made aware that one of your employees had or has COVID-19, this is private health information that should not be shared. If a scenario occurs with a need to share with your staff and/or customers that one of your team members has come down with COVID-19, you still must not release their name. Even if you think everyone can “figure out who it was” you still must not release the name. 


8. Consider what safety training is necessary. This could be a complex training course for those who have a lot of public contact, or it could be something as simple as new protocols for a small office. Either way please ensure that managers are aware of the new training, and have a good understanding of the steps that need to be taken if an Employee is not following new protocols.


9. Finally, if you are rehiring staff, don’t forget about the standard administrative tasks. Go through your new or rehire checklist to ensure all steps are taken and nothing is missed (e.g. benefits enrollment, updating of employee information and taxes, restarting accrual policies, etc.). 


We realize this may seem like a tall order. But if you break it all down, perhaps throw it on a whiteboard, we believe you can build a simple and effective plan. And of course, TPPS is here to help. Just ask us! 

TPPS FYI March 31, 2020

WHAT’S HAPPENED SINCE OUR LAST FYI:


· CARES Act – signed into law 3/27/20

· DHS relaxes I-9 document verification process temporarily – employers can view documents virtually, notate such on Section 2, then when back to business-as-usual inspect in person and notate the date of the in person review on Section 2. 

· DOL has published FAQs on the Families First Coronavirus Response Act (FFCRA) 

· FFCRA effective date changed from April 2ndto April 1st

· FFCRA Poster required to be posted as of April 1st


WHAT WE’RE FOCUSING ON FROM AN HR PERSPECTIVE (at a high-level) 

FFCRA- Federal Act signed into law on March 18thand while this contains many provisions, we are focusing on the HR elements applicable to employers with less than 500 employees (see also our last FYI for more details). 


Emergency Paid Sick Leave (“EPSL”)

Provides up to 80 hours of EPSL for covered reasons ONLY, these are: 

1. The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19. 

2. The employee is advised by a health care provider to self-quarantine due to COVID-19 concerns.

3. The employee is experiencing COVID-19 symptoms and seeking medical diagnosis.

4. The employee is caring for an individual (not limited to family member) subject to a federal, state or local quarantine or isolation order or advised by a health care providerto self-quarantine due to COVID-19 concerns.

5. The employee is caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency.

6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.


Any active* employee can request this time - full or part time – regardless of how long they have worked for the company. 

*The DOL has provided guidance that an employee who was placed on a furlough 3/31/20 or prior is not eligible for EPSL, even if they have a qualifying reason. Additionally, if an employee is placed on a furlough after 4/1/20, their eligibility to receive EPSL ceases at the time of furlough. From the DOL: 

“23. If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded family and medical leave? 

No. If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility.” 


We strongly suggest that you carefully evaluate each scenario on a case-by-case basis. There are a lot of moving pieces and this is new for everyone. The DOL FAQ is a really good resource, bookmark this link. And call us if you need help interpreting anything or putting it into action. 


Emergency Family Medical Leave (“EFMLA”)

Expands the REASONS an employee can take FMLA. This is a limited expansion, much narrower than the EPSL. To take EFMLA an employee must be unable to work due to the need to care for their child under the age of 18 as a result of a school or day care closure.  It also requires PAY, unlike standard FMLA. A few important details: 


a. EFMLA does NOT give employees an additional 12 weeks of FMLA if they have already taken FMLA in the past 12 month period. 

b. EFMLA REQUIRES payment for 10 of the 12 weeks. 

c. Employees can use EPSL the first 2 weeks of the EFMLA leave (max at 80 hours). 

d. Employees who are ill due to COVID would qualify for the standard FMLA, which is unpaid. But they could also ask for EPSL for up to 80 hours. They would likely qualify for SDI, but that’s for the employee, their doctor, and the state to decide, not the employer. Let your employees know this is a resource for them if they are in this situation. 

e. EFMLA does NOT apply to someone who can work remotely with kids at home with them. Granted they may not want to work with kiddos in the background. So, if you can accommodate and they choose not to work, they are not eligible for this leave. 

f. EFMLA (and the normal FMLA) does not distinguish between Full and Part time employees – both are eligible. Compensation for part time is based on their normal work week. 

g. EFMLA can be taken intermittently if approved by the employer. 

h. As with EPSL employees who have been or are furloughed are not eligible for this leave. 


As stated above, we recommend you go through a thorough assessment of each situation to evaluate what type of accommodations are appropriate. Check the FAQ and don’t hesitate to reach out to our team. 


Taking the tax credit for EPSL and EFMLA payments

The FFCRA provides for full reimbursement to employers for EPSL and EFMLA pay. Employers can take immediate credit for these paid leaves. How do you do that? 

First, we recommend creating an earnings code specifically for this. Many payroll providers/software programs are already setting this up for clients – check with yours.  


When processing payroll tax payments, employers can retain the amount that was paid in EPSL and EFMLA from their payments in real time. If the EPSL and/or EFMLA pay exceeds the amount of taxes that would have been paid, employers can request an expedited advance from the IRS by submitting a streamlined claim form (the form is to be released next week). More can be found here


Small Business Exemption 

The FFCRA does provide for exemptions in certain cases. So how does that work?  

Straight from the DOL’s FAQs: 

An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:

· The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  

· The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or  

· There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.


“CARES” Act - Coronavirus Aid, Relief, and Economic Security Act. This is the latest, passed last week. The CARES Act provides optionsfor businesses, while the FFCRA has requirements for employers. We’re providing a very high-level summary here, and suggest you work with your CPA, banker, and other financial advisors on these programs. 


Paycheck Protection Program – Loan program through the SBA for employers with less than 500 employees. Its purpose is to allow an employer to maintain payroll, pay mortgages, pay utilities and other defined debts. Key is that employees remain employed through end of June. Talk to your banking advisor for more details.


Payroll Tax Deferral – Allows for a delayed payment of employer payroll taxes for the period of March 27, 2020 through January 1, 2021. 

Employee-Retention Credit – Allows for a tax credit of employees’ wages up to $10,000 per employee when an organization’s gross receipts have declined 50% (compared to the same quarter in 2019), or who have experienced a full or partial shutdown. 


401k temporary provision changes – Expands rules around distributions and loans. Talk to your plan advisor and/or Third Party Administrator. 

Unemployment Expansion – Gives the states the option to opt into the Federal program to expand the benefits typically offered at the state level, and to also relax some of the requirements of the unemployment programs. The program allows for an additional $600 payment per week for the unemployed up to four months. As a reminder, unemployment eligibility and benefits are determined by the State. We have received many requests to help employers calculate benefits for each employee. We suggest you direct your employees to the state’s resources on unemployment. All too often employees think that employers control these programs, we just fund them…

Plus much more outside our HR and Payroll wheelhouse. 


WHAT ELSE SHOULD EMPLOYERS BE THINKING ABOUT? 

It bears repeating, there are many moving pieces to all of these new programs and the state of our world. Take your time to carefully review all options before taking action. Remember there are a number of rules and regulations that remain in place. Employers should be thinking about what makes sense for the long-term health of their business and how to ensure there is a business for employees to come back to when this is all settled. Be sure to consult with all of your advisors – legal, HR, Benefits Broker, Insurance Broker, Financial Advisor and CPA. We are all in this together. 


If we can help, just ask us

TPPS FYI March 20, 2020

Yesterday the President signed into law the Families First Coronavirus Response Act. In summary the act provides for Emergency Family and Medical Leave, Emergency Paid Sick Leave, Tax Credits, and more. 


The act goes into effect April 2nd. 


We spent the night reviewing this act and working through the various ways this might impact you. This is brand new, and it is not all worked out, so we will continue to share developments as they come. For now, here is a heads-up on what’s happening this morning. 


EMERGENCY FAMILY & MEDICAL LEAVE EXPANSION (ER FMLA)

The act temporarily expands the Federal FMLA to cover employers with 500 or LESS employees (normally FMLA applies to employers with 50+ employees within a 75 mile radius). It reduces employee eligibility from 12 months to 30 days of employment. And it includes a paid element. 


If you have not been subject to the FMLA in the past – listen up, you are part of the team now.  


There are some exceptions to ER FMLA. Certain healthcare workers, emergency personnel, and employers with less than 50 employees who can prove hardship by providing the leave may be exempted (how to prove this is not yet clear). 


ER FMLA allows employees to take 12 weeks of job-protected time when an employee is unable to work due to the need to care for their minor child when the child’s school or day care is closed, or the childcare provider is unavailable due to COVID-19.


Unlike normal FMLA, this expansion has a paid element. The first 10 days of ER FMLA are unpaid, but employees may elect to substitute any accrued paid leave including Vacation/PTO or sick leave to cover some or all of the 10-day unpaid period (more on this below). 


After the first 10 days, the employer must pay full-time employees at two-thirds the employee’s Regular Rate for the number of hours the employee would normally work. The pay is capped at $200 per day, and $10,000 in total per employee. 


Part-time employees are entitled to be paid the average number of hours the employee worked in the six months prior to taking the leave. If the employee has worked less than six months, then they should be paid the average number of hours they would normally be scheduled. 


Like normal FMLA, employees are entitled to job reinstatement in most cases. However, if an employer has less than 25 employees and the employee’s position has been eliminated due to economic downturn or other circumstance caused by this emergency, reinstatement to the same position is not mandatory so long as there is a reasonable effort to return the employee to work for up to a year following the leave. Let’s talk before you start letting people go who are covered by ER FMLA. 


There are more details on this leave as well, but for the sake of making this digestible we will stop here for now. Call us with questions. 


EMERGENCY PAID SICK LEAVE ACT (ER PSL) 


This act applies to employers with fewer than 500 employees; yep we said fewer. It allows employees to take PAID sick leave for the following reasons: 


1. The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19.


2. The employee is advised by a health care provider to self-quarantine due to COVID-19 concerns.


3. The employee is experiencing COVID-19 symptoms and seeking medical diagnosis.


4. The employee is caring for an individual (not limited to family member) subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns.


5. The employee is caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency.


6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.


The act requires employers to pay all FULL TIME employees 80 hours of ER PSL at the employees Regular Rate for reasons 1, 2, and 3 above. For reasons 4, 5, and 6, the employee should be paid two thirds an employee’s Regular Rate


There is a limit on ER PSL. Employers are only required to pay up to $511 per day ($5,110 in total) for reasons 1, 2, and 3; and for reasons 4, 5, and 6 the cap is $200 per day ($2,000 in total). 


Part-time employees (and other non-fulltime employees) are entitled to benefits for two weeks based on the average hours the employee worked in the six months leading up to the leave. If the employee has worked less than six months than they should be paid the average number of hours they would normally be scheduled. 


When an employee is taking the leave under the new ER FMLA, and requests the use of the new ER Paid Sick Leave during the 10 day waiting period, the employer is required to pay such time. 


OKAY SO WHAT DOES THIS ALL MEAN??? 


Well we’re working that out…what we see so far: 


Does this mean that all employees are basically getting ER PSL? 

No. If you can have employees work, including remotely, and if you authorize them to do so with children home and under their care, we don’t believe employees are entitled to the pay. If they refuse to work and insist on collecting the ER PSL, then we may need to have a discussion. We do not believe they are entitled to collect the ER PSL because they choose to self-quarantine or not make themselves available to work. 


Also, the law is pretty clear that this is related to COVID-19. And while that might be hard to substantiate, we don’t believe this covers every absence due to illness right now. Of course, authorities are also advising employers NOT to require doctors notes in order to keep the healthcare system open for those in real need. So it’s a little bit of a catch-22 here. 


How will employers be made whole for paying employees ER FMLA or ER PSL?

Employers will be provided with tax credits via the employer portion of Social Security taxes. Employers will be entitled to credits equal to the total amount paid for qualified sick leave (as defined by the act). More to come on this front… 

In the meantime, TPPS suggests you create an earnings code in your payroll system to start tracking this pay for ease in reconciling your tax credits. Need help? Contact our Payroll expert Carmen@totalpackageps.com


How does ER PSL overlap with existing State/Local Paid Sick Leave laws? 

We believe that the ER PSL runs concurrently with existing paid sick leave laws, vs. extending the benefits. However, the act does not clearly state this. More to come….


Also, does this mean that employers can get a credit on their already budgeted mandatory paid sick leave benefits? Not sure. We’ll keep digging on that. 

How does ER PSL overlap with my company provided time off benefits? 

If an employee is being paid vacation, PTO, or other non-mandatory company provided benefit, they will not be eligible to collect ER PSL. However, if they exhaust such company paid benefit (say because they are taking 12 weeks of ER FMLA and only have two weeks of PTO accrued) we do believe they can then begin to collect ER PSL. 


Each company’s benefit plan is a little different. We suggest you sit down to map out all the moving pieces. We are here to help you with that discussion. 

What about other state benefits? 


Focusing on California, employees may still be eligible for normal benefits and job protections like the CA Family Rights Act (CFRA) and, of course, the standard Federal FMLA and ADA job protections. Also keep in mind, employees may be able to apply for other state benefit programs like SDI, State Unemployment and Paid Family Leave. We’re thinking each situation is going to require a flow chart. We are here to help with that. 


I closed my business already. Do I have to pay my employees any of these State or Federal benefits? 


Let’s start with California. Mandatory paid sick leave, as per CA law, only needs to be paid for purposes defined by law (or your policy if you’ve expanded it beyond the minimum requirements). An operational shut down where you have no work to provide to your employees does not require this pay. Other state and local requirements could differ. You should check with each municipality in which you operate, or give us a call and we’ll dig in. 


Under the new Federal act, whether ER PSL has to be paid is dependent upon the six factors outlined above. For example, if you must close your operation due to a federal, state or local order to do so, then your employees may be eligible for this pay. However, if you have closed your business preemptively, are not under any mandate to quarantine/not operate, we don’t believe that your employees are eligible for the ER PSL. HOWEVER THINGS ARE CHANGING HOURLY AND WE WILL MONITOR THIS CLOSELY. 


What’s next? 


We will keep communicating. In the next few weeks, once we know more about how long this might continue, we will turn our attention to longer term deicsions on benefits and such. For now, it’s one day at a time in our book. 


A FEW OTHER UPDATES WHILE WE HAVE YOU: 


In California the WARN act has been relaxed temporarily. Under normal circumstances employers are required to provide a 60-day notice to workers when a mass layoff is to occur. The temporary order allows for notice as soon as practicable. There are many things to consider when it comes to a layoff. Even with the WARN act relaxed, we advise you speak to legal counsel or give TPPS a call. 


Also, in California Governor Newsom signed an Executive Order to ease restrictions on Commercial Drivers. More from the great Sheppard Mullin team here


The EEOC now says employers MAY take employees’ temperatures but proceed with caution. We highly recommend that you have a bona fide business reason to do so. Thinking about doing this? Let’s chat… 


Social Distancing. Be sure you are up to speed on the current social distancing rules for your county/city. These are changing by the hour it seems. For example here in San Diego, the latest limits social gatherings to 10 people, which includes the workplace. 


Finally, the TPPS team has made the decision to begin working from home as of today. We all must do our part. We’re bummed to not see each other every day as that’s a key part of what makes our team so great, but we know this will help us all get back to business-as-usual quicker. We hope you are all making the same types of decisions. We must be united right now. 

As always, we are here for you, just ask us! 

TPPS FYI March 15, 2020

We know that you are being inundated with emails regarding COVID-19, but we feel it is time that TPPS jump into this discussion. We will take a brief and concise approach to providing you with our suggestions and guidance for managing through this crazy time. 


At TPPS we believe we are responsible for being good citizens, strong leaders, and not reacting without thoughtful consideration first. The fact of the matter is that according  to the CDC, COVID-19 has only affected 1,200 out of the 330 million Americans in the United States. And while we realize there is a real threat of an outbreak that can strain our healthcare system and that certain individuals are more vulnerable than others, we also realize that overreacting can have long term devastating effects on our workplaces, our mental health, and our economy. We encourage all of you to be strong leaders and to be thoughtful about any actions you decide to take to address COVID-19 fears and threats within your organization. 


Questions & Answers to some of the questions we are hearing from our community: 

1. My employees are scared to come to work. What should I do? 

First and foremost employers are required to provide a safe working environment. This means that if you are made aware of infected persons within your organization (employees, customers, vendors, etc.) you take immediate action to remove those individuals. We also recommend you work with your facilities management folks to sanitize the workplace (in general and also after exposure).


What this doesn’t mean is that employers have to accommodate unsubstantiated fearsthat someone could come into the organization with the virus. Of course, we highly suggest that leaders take employees’ concerns seriously and allow them the space to express concerns and share thoughts. 


2. How do I know if my employees have been exposed to COVID? Can I test them? 

Not everyone will be tested for the virus, nor do we recommend that employers start testing employees. We do suggest that leaders bring their teams together for honest, open conversations. Share with your employees what you are doing to monitor and prevent the spread of the virus within the organization. Let employees know that you are sensitive to their concerns and want to hear from them if they are in the vulnerable population, so you can discuss appropriate accommodations (like time off or working from home when applicable). You should not however ask employees specifics about their medical conditions. We also recommend that you do not ask for doctor’s notes from employees to prove they are in the vulnerable population (under normal conditions employers typically do, and are entitled to documentation that an accommodation is medically necessary). 


We also recommend that you ask employees to report to you if they have been exposed to, or tested positive for the virus. While you can’t require them to report, we believe most employees will understand the moral obligation to be forthcoming. Once you obtain this information you have an obligation to notify your employees, clients, vendors, and others who may have also been exposed to that employee. You should not however disclose the name of the affected employee. 


3. Can I ask my employees where they have traveled to recently? 

Yes. If an employee has been to any of the hot spots, you may ask that they self-quarantine. As with all employment actions, be consistent with this discussion and the actions you take based on the information you gather. 


4. Can I tell my employees to stay home if they are sick? 

YES! We also recommend that you tell employees to stay home if they have been exposed to anyone who has been ill, such as a family member.  


5. What if employees can’t come to work because of school closures? 

We suggest that as a part of the conversation outlined above, you ask employees to let you know right away if they have any difficulty with working their schedule due to childcare issues. While you may not be able to accommodate everyone’s schedule request, we suggest you engage in dialog and work with your team to shift schedules around and try to accommodate where you can. You will need the entire team to work together collectively. 


California also requires employers with 25 or more employees to grant employees with up to 40 hours per year of time for school-related emergencies. The current closures fall into this category. Whether you have to pay the employee for this time, depends on your policy. 


Additionally, as a result of the school closures, California EDD is also allowing employees who have no alternatives to childcare to apply for unemployment insurance benefits. More information can be found here


6. What if I need to scale back my staff? 

Generally speaking, employers retain the right to schedule operations as necessary to effectively run their business. In California and many other states, employees can file for partial unemployment insurance benefits if their hours are reduced or if they are temporarily laid off/not scheduled. 


You may also consider asking employees to volunteer to give up shifts or work less hours. This might be helpful for those who are having childcare challenges. However, don’t assume those with children will want to stay home or give up shifts. Making employment decisions based on someone’s status as a parent is a discriminatory practice.


Employers in many states also have access to Work Sharing Programs. You can find information about California’s program here


7. Do I need to pay my staff when they are not working due to a closure? 

If you cut back on staff, shorten shifts, etc., you are not required to pay non-exemptemployees when they are not working. Therefore you will only pay non-exempt employees when they are working. You should be aware that in the event your California non-exempt employees are sent home early, California requires employers to pay reporting time pay. This is half the number of hours the employee was scheduled to work, up to 4 hours. There is an exception however, if your operations cease due to recommendation/requirement of a civil authority you are not required to pay reporting time pay. 


Exempt employees are required to be paid their normal salary for any workweek in which they work, absent the employee’s request to use vacation time. 

8. Can I let employees use paid time off (e.g. vacation pay/PTO or sick pay) when they don’t work? 


Yes. We recommend you continue to follow your time off policies, but perhaps relax terms that require a certain amount of advance notice. If you need to reduce your staff, you can encourage them to use any available time off so they are not taking the time off without pay. However, you may not be required to allow them to use all accrued time. Be sure you understand your policy, follow it consistently, and if you make deviations from policy for the short run, memorialize the deviation in writing and consistently apply the change to all staff. 


For example, some of our clients have decided to allow employees to use paid sick leave to take time off when they don’t have childcare, but only for the current state of emergency. Under normal circumstances, most paid sick leave policies would not allow time off due to childcare issues. In California, in order to avoid having your sick time policy turn into a vacation policy in the Labor Commissioner’s eyes, it’s critical that you be consistent in only allowing sick time to be used for defined purposes. This is why we strongly recommend that if you allow sick time to be used for other reasons right now, you memorialize the change and state it is only for a defined period of time. 


9. What should I do if one of my employees becomes ill?

We suggest that you treat the illness like any other illness. What that means depends on a number of factors. Do you have a local paid sick leave ordinance? Does the employee qualify for Family Medical Leave (Federal or State)? Does the Americans with Disabilities Act (or State version) apply? Each satiation should be carefully evaluated. TPPS is here to help you navigate these murky waters. 

10. I want to implement a work from home policy. What should I consider? 


We fully support this approach; however, it won’t make sense for everyone or every business, nor do we think it is necessary for every case. At TPPS we are a small close-knit team. We have the means to work from just about anywhere, and we have a plan in place to work remote if need be. But we want to continue business as usual to the extent possible, so we will be coming to work each day reassessing what makes sense for the next day, one day at a time. We suggest you do the same. While we see the schools and many businesses shutting down or implementing work from home policies for a defined period, unless you have a reason to define your shut down or work from home period, we suggest you leave it fluid. 


When considering your policy, even if only a temporary one, we recommend you incorporate the following topics: 


Wage & Hour: When employees work from home the same wage and hour rules apply, to both exempt and non-exempt. This means non-exempt employees must record all hours worked and they must still take their meal and rest breaks. Exempt employees must be paid their normal salary for any work week in which they work. 


Employers can and should still enforce attendance rules (granted they may be more difficult). 


Workers Compensation & Safety:  Employees who are injured at home while working are till entitled to workers compensation coverage. Consider including parameters for what your organization defines as a safe and acceptable workspace. 


Expense Reimbursement: California requires employers to reimburse employees for all business related expenses. This can be a slippery slope. At minimum we recommend that if employees are required to use their personal cell phone, you provide a stipend (we usually see something in the range of $25-75 per month). Send employees home with tools, supplies, etc. they will need to complete their work. Ideally, you will provide them with a company-issued laptop (more on security below). This does not mean that you will need to start reimbursing employees for the use of electricity or home internet, but again, this is a bit of a grey area. While we want to say that considering the state of our world the Labor Commissioner will take a slightly relaxed stance on this topic, we have no way of being sure. So be very thoughtful about what expenses your employees may incur while working at home on your behalf. 


Network Security: Work with IT to define how employees can access company systems and files. In some cases it might be necessary for employees to use their personal devices, which can lead to the compromise of your systems or proprietary information. Consult IT experts in this area. 


Childcare & Distractions: Make it clear to employees whether or not you are okay with them being home and on the clock working while they are also supervising their children. Under normal circumstances we advise employers with work from home policies to make it clear to employees that having children at home with them without other supervision is not acceptable. We take a slightly relaxed stance today, but we still recommend that you make it clear to employees that if they are not able to dedicate the majority of their time and attention to their work while at home, they take the time off. 


TPPS is here to support you. Together we will all get through this. We believe the key is that as a business community and society as a whole, we work together. If you have more specific questions, or questions regarding your employees outside of California, just ask us


Additional resources for employers can be found with Cal-OSHA, the Centers for Disease Control, as well as at the California DLSE.