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Employers’ Top COVID-19-Related FAQs
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The COVID-19 pandemic has dramatically altered the way many of us work and live, leaving employers suddenly faced with a seemingly endless stream of new and unfamiliar workplace issues and an array of rapidly implemented new federal, state, and municipal employment laws. With federal social distancing guidance and California’s stay-home order in place for an undetermined time, it is imperative that employers stay up to date on the latest developments in COVID-19-related workplace issues and new changes in the law.
Over the last several weeks, Thakur Law Firm, APC received an unprecedented amount of urgent inquiries from employers with COVID-19-related questions. The following are some of the most frequently asked questions, and the answers.
Is my business an “essential business” under the “shelter-in-place” orders?
Many California employers are currently wondering if their business qualifies as an “essential business” under the statewide orders. The list of the types of businesses deemed “essential” is lengthy, technical, and varies according to the applicable state or local order. Employers should refer to the California Governor Gavin Newsom’s state order to determine if their business is deemed essential. Employers who are uncertain as to whether their businesses are explicitly essential should contact the Thakur Law Firm for assistance.
What is the difference between “furloughing and “laying off” employees?
Many employers have asked for advice regarding their decisions to furlough or lay off certain employees in response to the crisis. Employers must first, however, understand the difference between furloughs and lay offs to make a properly informed decision.
Basically, a furloughed employee remains an employee, but with reduced or eliminated work hours, while a layoff generally means a complete employment separation due to the job being eliminated. In certain circumstances involving COVID-19, however, the California Labor Commissioner may not distinguish between a temporarily furloughed employee without any work hours and a laid-off employee. The Labor Commissioner has stated that if an employer reduces an employee’s scheduled work hours to zero and doesn’t reschedule that employee within the same pay period, the employer has effectively laid off the employee, which triggers the final pay requirements under Labor Code section 201, addressed below.
How do we issue employees their final paychecks, if they have been laid off or we must close due to COVID-19?
Employers still must meet California’s final pay requirements and are subject to waiting time penalties if payment of final wages is not timely made. By law, employers must provide the final paycheck at the time and location that a severance occurs, but, due to social distancing, it may not be feasible to do so. Once the employee has their employment severed, they must be paid their final pay, including owed vacation and paid time off, to the best of the employer’s ability.
If employers must mail or overnight an employee’s final paycheck, they may choose to add the appropriate waiting time penalties to the final paycheck, which is one day of wages for every day the final paycheck is late, capped at 30 days. The Labor Commissioner is currently looking at this issue and is expected to issue guidance related to COVID-19-related separations of employment.
Can an employer take an employee’s temperature before they start work?
Yes, effective March 2020, the Equal Employment Opportunity Commission and California Department of Fair Employment and Housing (DFEH) are permitting employers to take employees’ temperatures only if specifically related to COVID-19. Employers should carefully consider hygiene and social distancing precautions for any temperature-taking program. Employers should also bear in mind that taking an employee’s temperature is subject to American with Disabilities Act confidentiality requirements.
Are we required to notify our employees if we learn an employee tested positive for COVID-19?
If an employee tests positive for COVID-19, employers should immediately contact their county health officials and the California Department of Public Health. These agencies will direct employers on what steps they need to take, but we strongly recommend that our clients do not make any notifications without first consulting with an attorney to avoid possibly violating employee healthcare privacy rights.
Employers must be mindful of employees’ privacy, and not divulge names. Employers can alert employees with a general statement that an employee has tested positive for COVID-19, and other employees may have been exposed.
Can we require our employees wear protective gear, such as masks?
Yes, employers can require employees to wear personal protective equipment, but should make reasonable accommodations if certain employees have disabilities that limit their ability to wear such gear. For example, if an employee has a latex allergy, the employer should provide non-latex gloves.
How can we keep up to date on changing rules and employment laws related to COVID-19?
One of the biggest challenges for employers is keeping up with the various local, state, and federal rule changes that have occurred over the past several weeks — which also includes the new federal Emergency Paid Sick Leave and expanded Family and Medical Leave Act rules resulting from the Families First Coronavirus Response Act (FFCRA). Thakur Law Firm attorneys have already accumulated a great deal of knowledge and experience regarding these new laws, as well as the possible exemptions from the paid leave requirements of the laws. We urge you to contact the Thakur Law Firm immediately, if you have any questions regarding the FFCRA.
Employers should share these links to important government websites with all managerial employees and other decision makers so handy so they can access them daily to keep abreast of the rapidly changing news and utilize the valuable resources they provide.
We further recommend that employers often check with their county and city government agencies on COVID-19-related local ordinances or orders in effect or that may take effect.
Thakur Law Firm, APC has made a concerted effort to stay informed of the latest key developments in the COVID-19 pandemic as it affects the workplace and the law so we can provide our employer clients practical solutions for navigating this ever-changing crisis.
The foregoing is for informational purposes only and is not a substitute for the hands-on, individually tailored analysis and advice that is called for to properly address all of the issues discussed above. If you are facing such an issue or have any questions about COVID-19, do not hesitate to contact us.