Atkinson’s Answers

03.16.2020

Following are the most frequently asked questions regarding COVID-19 (Coronavirus) from our clients organized by area of law.

These issues remain fluid and we are receiving regular updates from federal, state, and local government agencies which may change our approach. Understand, the underlying approach to answering these questions is the safety of workers and the general public while trying to limit the negative impact on specific workers.

DISABILITY LAW

Question: Can I require an employee submit to a medical exam before returning to work?

Answer:

The EEOC states a test may be required before employees may be permitted to return to work. However, other options exist, such as requiring a doctor’s note or a time period during which the employee has been symptom-free. Recognize that obtaining a COVID-19 test or doctor’s note may be difficult and overwhelm medical services in these first few weeks.

The EEOC states:

May an employer require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work?

Yes. However, employers should consider that during a pandemic, healthcare resources may be overwhelmed and it may be difficult for employees to get appointments with doctors or other health care providers to verify they are well or no longer contagious.

During a pandemic health crisis, under the Americans with Disabilities Act (ADA), an employer would be allowed to require a doctor’s note, a medical examination, or a time period during which the employee has been symptom free, before it allows the employee to return to work. Specifically, an employer may require the above actions of an employee where it has a reasonable belief – based on objective evidence – that the employee’s present medical condition would:

Impair his ability to perform essential job functions (i.e., fundamental job duties) with or without reasonable accommodation, or,
Pose a direct threat (i.e., significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation) to safety in the workplace.

In situations in which an employee’s leave is covered by the FMLA, the employer may have a uniformly-applied policy or practice that requires all similarly-situated employees to obtain and present certification from the employee’s health care provider that the employee is able to resume work.

Question: May an employer take employees’ temperatures as a means of screening for COVID-19?

Answer:

There is no clear answer at this time whether temperature taking is a violation of an individual’s privacy. Nonetheless, if an employer feels compelled to take employees’ temperature as a condition of remaining at work, there may be defenses available that doing so during this crisis is valid in an effort to protect other workers and the general population in reliance on various government declarations of emergency. A less problematic alternative would be to request employees self-monitor their temperature on a regular basis.

Based on the current EEOC guidance summarized below, there is risk associated with ordering a medical exam due to disability law protections unless a pandemic becomes widespread in the community as assessed by local health authorities or the CDC. As of today , only Santa Clara County has been identified in California by the CDC as warranting temperature taking as a measure of COVID-19 protection.

The EEOC states:

Generally, measuring an employee’s body temperature is a medical examination. If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature. However, employers should be aware that some people with influenza, including the 2009 H1N1 virus, do not have a fever so the absence of a fever does not mean the worker is not contagious.

The Americans with Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA”) restrict employers’ inquiries into an employee’s medical status. The EEOC considers taking employees’ temperatures to be a “medical examination” under the ADA. The ADA and FEHA prohibit employers from requiring medical examinations unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.

Taking employees’ temperatures may be prohibited if is not job-related and consistent with business necessity. The analysis into whether taking a temperature is job-related and consistent with business necessity is fact-specific and may vary among employers and circumstances. The EEOC takes the position that during a pandemic, employers should rely on the latest CDC and state or local public health assessments to determine whether the pandemic rises to the level of a “direct threat.” Such an assessment by the CDC or local authorities as to the severity of COVID-19 may provide needed objective evidence for justifying a medical examination. If COVID-19 becomes widespread in the community, as determined by the CDC, or state or local health authorities, then employers may consider taking an employee’s temperature at work.

However, employers must consider the effectiveness of the temperature check, as an employee may be infected with the COVID-19 coronavirus without exhibiting recognized symptoms such as a fever, and as fever may result from another condition, so temperature checks may not be the most effective method for protecting its workforce. Employers considering taking temperatures must also account for the safety and training of those conducting the testing, where the testing will be conducted, the privacy concerns of employees sent home, and compensation to employees for time spent waiting to be tested.

Question: If we have an employee who has a disability that we fear may put the employee at higher risk if exposed to the Coronavirus, can we send that employee home or transfer that employee to a different job?

Answer:

Once local authorities or CDC declare the influenza pandemic as severe an employer may reasonably conclude certain disabled employees will face a direct threat if they contract pandemic influenza. Under such circumstances, an employer may make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications. Therefore, employers should engage in the interactive process with employees to determine if reasonable accommodations are available, including working elsewhere at the company or taking a leave of absence.

The EEOC states the following:

During a pandemic, may an ADA-covered employer ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to influenza complications?

No. If pandemic influenza is like seasonal influenza or the H1N1 virus in the spring/summer of 2009, making disability-related inquiries or requiring medical examinations of employees without symptoms is prohibited by the ADA. However, under these conditions, employers should allow employees who experience flu-like symptoms to stay at home, which will benefit all employees including those who may be at increased risk of developing complications.

If an employee voluntarily discloses (without a disability-related inquiry) that he has a specific medical condition or disability that puts him or her at increased risk of influenza complications, the employer must keep this information confidential. The employer may ask him to describe the type of assistance he thinks will be needed (e.g. telework or leave for a medical appointment). Employers should not assume that all disabilities increase the risk of influenza complications. Many disabilities do not increase this risk (e.g. vision or mobility disabilities).

If an influenza pandemic becomes more severe or serious according to the assessment of local, state or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza. Only in this circumstance may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications.

Question: Are we required to accommodate an employee requesting to work at home due to fear of contracting the Coronavirus.

Answer:

If the employee is suffering from symptoms then working from home is a reasonable accommodation under the ADA and FEHA if the job duties can be performed from home. If the work from home request is preventative, then allowing such is not required but is a best practice job duties permitting.

Question: During a pandemic, how much information may an employer request from employees who report feeling ill at work or who call in sick?

Answer:

Employers may ask employees if they are experiencing influenza-like symptoms: fever, chills, difficulty breathing, cough, or sore throat. The employer must maintain any information in a confidential employee medical file.

Be sure to perform routine environmental cleaning to disinfect the work area(s) of the affected employees.

WAGE AND HOUR

Question: If an employee works from home during a Coronavirus quarantine and uses their personal cellular telephone to conduct business, must the employer reimburse the employee for such use?

Answer:

Yes. If an employer allows an employee to use a personal device (or personal internet from home) to perform work, the employee must be properly reimbursed for the cost of use.

Question: If a non-exempt employee works remotely, can an employer limit the number of hours that the employee works?

Answer:

Yes. Employers should consider establishing a temporary remote work policy and/or agreements with employees who choose to or are assigned to work remotely during the Coronavirus pandemic.

Question: How must exempt employees be paid if they are sent home due to the Coronavirus and do not work from home?

Answer:

Exempt employees must receive a weekly salary for any work week where they are ready, willing, and able to work and are precluded from doing so UNLESS the employees performs no service for the company during the work week (i.e. if the exempt employee performs any work during the week, then is precluded from performing work during the rest of the work week, the employee must be paid the employee’s weekly salary).

Question: If a non-exempt employee shows up for work—but is sent home for showing signs of a potential infectious respiratory disease (such as COVID-19)—must they be paid reporting time pay?

Answer:

The California Labor Commissioner’s Office is taking the position employees must be paid reporting time pay in this instance. However, there are exemptions from this requirement which may allow not paying employees who are sent home for exhibiting COVID -19 symptoms. As of the writing of this alert, the best practice is to pay an employee reporting time pay in this instance.

Generally, employers are required to compensate employees who report to work expecting to work a specified number of hours and are subsequently deprived of that amount due to inadequate scheduling or lack of notice by the employer. Wage Order 1 - Section 5 provides:

(A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage.

(B) If an employee is required to report for work a second time in any one workday and is furnished less than two hours of work on the second reporting, said employee shall be paid for two hours at the employee's regular rate of pay, which shall not be less than the minimum wage.

(1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or

(2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or

(3) The interruption of work is caused by an Act of God or other cause not within the employer's control.

The California Department of Industrial Relations (“DIR”) recently posted a Frequently Asked Questions (FAQ) on laws enforced by the Labor Commissioner in light of the COVID-19 Disease. See Question 5 of the Labor Commissioner’s FAQ provides some further guidance on this issue:

Is an employee entitled to compensation for reporting to work and being sent home?

Yes. Generally, if an employee reports to their regularly scheduled shift but is required to work fewer hours or is sent home, the employee must be compensated for at least two hours or no more than four hours of reporting time pay.

The Labor Commissioner’s FAQ further expanded on this answer with an example:

A worker who reports to work for an eight-hour shift and only works for one hour must receive four hours of pay, one for the hour worked and three as reporting time pay so that the worker receives pay for at least half of the expected eight-hour shift.

As such, it appears that a non-exempt employee who reports for a regularly-scheduled shift—but is sent home with symptoms of COVID-19 or another respiratory disease—must be compensated for at least two hours, and up to four hours, depending on shift length.

Lastly, the Labor Commissioner’s FAQ highlighted the civil authority closure exception in its FAQ, suggesting that the exception may apply under some circumstances. However, until civil authorities issue recommendations to cease operations due to COVID-19, employees should be compensated for reporting time pay if they are sent home due to COVID-19 concerns.

LEAVES OF ABSENCE

Question: Do any leaves of absence apply for employees to take time off to care for a child whose school has shut down due to the Coronavirus?

Answer:

The California Labor Code provides School and Child Care Center Leave for employees who work at employers with 25 or more employees. (Labor Code § 230.8.) The Labor Code provides:

An employer who employs 25 or more employees working at the same location shall not discharge or in any way discriminate against an employee who is a parent of one or more children of the age to attend kindergarten or grades 1 to 12, inclusive, or a licensed child care provider, for taking off up to 40 hours each year, for the purpose of either of the following child-related activities:

… To address a child care provider or “school emergency,” if the employee gives notice to the employer…

“School emergency” is defined as: Closure or unexpected unavailability of the school or child care provider, excluding planned holidays, or a natural disaster, including, but not limited to, fire, earthquake, or flood.

Employees in the City of San Diego may use sick leave for absences where the employee’s place of business is closed by order of a public official due to a Public Health Emergency, or the employee is providing care or assistance to a child whose school or child care provider is closed by order of a public official due to a Public Health Emergency.

OSHA –WORKPLACE SAFETY

Question: What must employers consider regarding respirators and assessing occupational exposures?

Answer:

An employer must provide respirators when necessary to protect the health of the employees. Cal/OSHA addresses the use of respirators in Title 8, California Code of Regulations, §5144. This usually comes up in situations of a known exposure to a hazardous substance/environment where the employer has performed a hazard assessment and determined that a respirator is required. We are not addressing those environments here.

We are getting questions regarding the use of respirators in light of the coronavirus outbreak for employers that do not normally require the use of respirators. Unfortunately, Cal/OSHA has not provided direct guidance on when employers should require respirators in response to this pandemic. But, before discussing respirators, Cal/OSHA recommends eliminating airborne hazardous by using engineering controls (i.e. mechanical ventilation) and administrative controls (i.e. reducing exposure such as the infection prevention measures suggested by the CDC, allowing flexible work schedules, telecommuting, increasing distance between employees.)

The next step is to determine if the exposure requires the use of respirators and here we focus on the exposure. Fed/OSHA has provided a hierarchy of classifying worker exposure to coronavirus ranging from “Very High” to “Lower Risk”. “Guidance on Preparing Workplaces for COVID-19” which is helpful. The “Very High” and “High Exposure” categories include healthcare and healthcare related workers who are likely to treat, diagnose and/or transport known or suspected coronavirus patients. In California, these employers probably have to comply with the Aerosol Transmissible Disease Standard (Title 8, CCR §5199)

Most questions are coming from employers who have “Medium Exposure” and “Lower Exposure.”

Medium Exposure” includes jobs where employees have frequent and/or close contact (within 6 feet of each other) with people who may be infected but who are not known or suspected coronavirus patients. This includes areas where there is ongoing community transmission and employees may have contact with the general public (i.e. schools, high density workplaces, high-volume retail settings). ”Lower Exposure” includes jobs that do not require contact with people known or suspected to have coronavirus and do not have frequent contact (within 6 feet) with the general public.

The “Lower Exposure” and “Medium Exposure” workers should all follow the “Steps All Employers Can Take to Reduce Workers’ Risk of Exposure to SARS-CoV-2:” Employers in “Medium Exposure” workplaces should consider implementing engineering controls (i.e. physical barriers, sneeze guards, etc.) and administrative controls like offering facemasks to ill employees to contain secretions until they are able to leave the workplace, informing employees and customers about symptoms and minimizing contact, limiting customer access to public areas, minimize face-to-face contact (drive-through windows, phone-based communication, telework, etc.).

Question: Do I have to provide respirators to employees? Can I refuse an employees’ request to wear a respirator?

Answer:

If you are not required to provide a respirator because of a standard, the workers can voluntarily use a respirator as long as you determine that the use of a respirator will not create a hazard. If these elements are satisfied, then employees may voluntarily use the facepiece-type respirators (dust masks). Employers must provide the employees with the information in Title 8, CCR, §5144, Appendix D (Mandatory) Information for Employees Using Respirators When Not Required Under the Standard.

Cal/OSHA notes that surgical and other non-respirator face masks do not protect persons from airborne infectious disease and cannot be relied upon for novel pathogens. They do not prevent inhalation of virus particles because they do not seal to the person’s face and are not tested to filtration efficiencies of respirators.

Question: Can I refuse an employee’s request to wear a respirator?

Answer:

Maybe. This turns on the “voluntary” use of respirators discussed above. If the respirator creates a hazard then you can tell employees not to wear the “facepiece type respirators (dust masks). Cal/OSHA notes that surgical and other non-respirator face masks do not protect persons from airborne infectious disease and cannot be relied upon for novel pathogens. They do not prevent inhalation of virus particles because they do not seal to the person’s face and are not tested to filtration efficiencies of respirators. Further, the CDC says you do not need to wear a facemask unless you are caring for someone who is sick (and they are not able to wear a facemask). Facemasks may be in short supply and they should be saved for caregivers and others who need them. This could create a gray area and we would need a full understanding to give advice in this area.

Question: Can we send employees home or tell employees to stay home if they are exhibiting flu-like symptoms?

Answer:

Yes. The CDC Interim Guidelines and Cal/OSHA Interim Guidelines for General Industry on 2019 Novel Coronavirus Disease (COVID-19) recommend that you encourage sick employees to stay home and send employees with acute respiratory illness home.

Question: Can an employee refuse to work because they are afraid of becoming sick?

Maybe. Employees have the right to refuse to perform hazardous work if both of the following are true. For a health hazard, two conditions must be met before a hazard becomes an imminent hazard: (1) There must be a reasonable expectation that toxic substances are present and exposure to them will shorten life or cause significant reduction in physical or mental efficiency and (2) The threat must be imminent or immediate. This means that you must believe that death or serious physical harm could occur within a short time, for example, before Cal/OSHA could investigate the problem

The answer to the question is going to be different depending on the environment and the exposure. In “Very High” and “High” workplaces, the workers are more likely to be treating and/or directly exposed to individuals who have tested positive for COVID-19. For instance, not providing these workers treating these individuals with the proper personal protective equipment could be an “imminent or immediate” threat.

Environments which have a “Medium” or “Lower Exposure” present different issues. If you follow the recommendations from Cal/OSHA, Fed/OSHA and the CDC then the coronavirus will probably not create an “imminent hazard” which would allow a worker to refuse to work.

Question: What if an employee is suspected of having COVID-19?

Answer:

Send the employee home and tell the affected employees that there is a suspected but unconfirmed exposure to COVID-19. Do not identify the employee by name.

Question: What if a family member of an employee tests positive for COVID-19?

Answer:

The employee should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

Question: Do we have to “report” coronavirus-related illnesses to Cal/OSHA or “record” them on our OSHA 300 log?

Answer:

If the exposure occurred at work and the employee was diagnosed or tested positive for COVID-19, this is OSHA recordable; employees diagnosed by a physician or other licensed health care professional would be OSHA recordable.

Any employees not tested/diagnosed but exposed at work

If directed by the Health Department to self-quarantine, the employer would want to notify the workers’ compensation carrier of the potential exposure.
If any of the self-quarantined employees test positive, notify the workers’ compensation carrier and the subsequent medical diagnosis and treatment with a prescription medication would then be an OSHA recordable event.

The Recordkeeping classification of either Lost Time or Restricted Duty will depend on whether or not the employee can complete some work despite the illness. If the employee is unable to work at all, it will be recorded as a Lost Time case.

As for OSHA Reporting, a call or electronic report will be made only if an employee is hospitalized for treatment.

IMPACT ON WORKPLACE PRACTICES AND POLICIES

Question: What measures can an employer take when employees return from travel from an affected area?

Answer:

Employers are advised to take the following steps regarding employees who are returning to the United States from an affected area:

Advise employees they are likely to be questioned by governmental authorities upon their return and may be required to undergo mandatory health screenings conducted by the government.
Advise employees that before they report to work, they must either: (1) obtain a medical release from a health care provider stating they show no signs or symptoms of COVID-19 and may return to the workplace, if practicable, or (2) be placed on a 14-day quarantine during which they may not enter the workplace.
- Employees may be offered telework on an emergency basis if administratively feasible. Telework can raise particular concerns in terms of compliance with California wage/hour and disability laws, so employers are encouraged to speak with their employment counsel before taking this step.
- If a leave of absence is required, it may be paid or unpaid. Employees should be permitted to use accrued but unused paid time off (PTO, vacation and/or sick time) during the leave. Employees who contract COVID-19 may be entitled to a protected leave of absence, as outlined below.
- Employees placed on a leave of absence should be required to obtain a release from a health care provider stating they show no signs or symptoms of COVID-19 and may return to the workplace, if practicable.
Advise employees they must immediately report any future signs or symptoms of the virus.

Question: What measures may employers take with employees who show signs or report viral symptoms?

Answer:

Signs of COVID-19 include, but are not limited to, fever and cough. Symptoms include feeling sick and difficulty breathing.

During an influenza pandemic, the CDC states that employees who become ill with influenza-like symptoms at work should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus. Additionally, the action would be permitted under the ADA if illness were serious enough. Have the employee identify any other employees with whom they worked in close proximity (i.e. 6 feet) within the last 14 days and send them home as well. Be sure to maintain the confidentiality of the employee.

If employees exhibit signs of the virus or report symptoms associated with COVID-19, employers must proceed with caution. Employers may consider requiring a medical release from a health care provider stating the symptoms are not the result of COVID-19. Employees may be placed on a leave of absence, during which they may not enter the workplace, until they provide a release. However, state and federal disability laws must be taken into consideration, as explained below.

Important! Employees who show signs of infection may be perceived as disabled under state and federal disability laws, even if they in fact are not disabled, and may make a claim of discrimination if they are singled out for treatment they perceive to be unfair. These same disability laws protect employees from discrimination based on their relationship or association with an individual with a disability, whether or not the employee has a disability—accordingly, employers must be careful in their handling of employees whose close friends or family members have contracted COVID-19. Finally, employees of a particular race, nationality or ancestry should not be singled out in any regard.

With the above in mind, employers may ask employees if they are experiencing symptoms of COVID-19. EEOC guidance concerning the 2009 H1N1 influenza pandemic confirms questions about symptomology are not disability-related unless the virus is found to be so severe it constitutes a disability. If this virus was determined to be severe enough to constitute a disability, however, the employee would pose a direct threat to the workplace, and the questions would be justified on that ground.

Question: What measures may an employer take regarding employees who contract COVID-19?

Answer:

If an employee has conclusively contracted COVID-19:

Immediately send the employee home or instruct the employee to remain at home until further notice.
- Employees may be offered telework on an emergency basis if administratively feasible, as a means of “social distancing” or as a reasonable accommodation for disabled employees.
- Employees may also be placed on a leave of absence until they are cleared to return to work by a health care provider. COVID-19 qualifies as a serious health condition sufficient to trigger Family and Medical Leave Act (FMLA) or California Family Rights Act (CFRA) leave eligibility. Leave may be paid or unpaid, according to the employer’s existing leave of absence policies.
Maintain the confidentiality of the employee and the employee’s medical condition. State and federal leave of absence, disability, and privacy laws mandate that medical records be kept confidential in most situations. HIPAA may also apply. Employers are advised to maintain health records separate from employee personnel files and limit dissemination of employee health information to only those individuals with a need to know.
Contact the CDC and local health department immediately.
Arrange for the employee’s workplace to be treated by a hazardous materials firm, if the employee entered the workplace after returning from the affected area.
Inform other employees of potential signs and symptoms of COVID-19.
Offer reimbursement of medical testing for employees.
File necessary workers’ compensation paperwork if the virus was work-related.

Question: What may an employer do to address coworker concerns if an employee appears ill or contracts COVID-19?

Answer:

Employers must carefully balance the rights of coworkers of an employee returning from an affected area with the rights of the employee. Coworkers may express concerns about exposure to employees returning from an affected area and contamination risk. They may ask to wear masks or other personal protective equipment. Some employees may simply refuse to work with an employee who has traveled to an affected area, even if that individual shows no signs or symptoms of the virus. Notably, group requests by employees can qualify as a protected concerted activity under the National Labor Relations Act.

Employers are advised to consider the actual exposure risk and err on the side of maintaining a safe workplace. An employee who has traveled to an affected area can be permitted to work from home, where feasible, or may be placed on an involuntary leave of absence. This leave should be handled in accordance with the guidelines stated above.

Employers must carefully avoid the appearance that an employee is being singled out based on the employee’s race, national origin or ancestry. Coworkers who express concerns about potential exposure or contamination based on an employee’s race, national origin or ancestry should be advised that the company is monitoring the situation and will comply with its obligation to maintain a safe workplace. Employers are urged to consult with their usual employment counsel to address these situations.

Finally, employers must be careful to maintain employee privacy regarding their health.

Question: What considerations are there for an employer if an employee refuses to work or service a customer out of concern of contracting COVID-19?

Answer:

The CDC notes employees in specific industries, particularly healthcare, are more susceptible to transmission of COVID-19. Cal-OSHA has also issued interim guidance for healthcare workers who may be exposed to COVID-19.

If an employee expresses concern about providing service to a customer that may result in exposure to the virus, the employer must carefully assess the situation to determine actual risk. Employees should generally be permitted to refuse to provide service to a customer who has recently traveled to an affected area and who exhibits signs or symptoms of the virus. However, businesses must be careful to avoid the appearance that a customer is being denied service due to the customer’s race, national origin or ancestry.

Question: What measures may an employer take to communicate with employees regarding COVID-19?

Answer:

Communication is key. Employers are strongly encouraged to establish a written policy and response plan addressing communicable illness, including coronavirus, which may impact the workplace. The policy should identify:

Illnesses and exposures employees are required to disclose, including the timing and procedure for making such disclosures.
Situations in which employees are required to stay home; circumstances under which the employer may exercise its discretion to send an employee home; and procedures for employees returning to work after an illness or exposure.
When an employer may require a quarantine of ill employees or those who have been exposed to others who have been ill.
Whether the employer will pay employees for the time spent in quarantine.
Benefits and leaves available to employees.
Travel or other limitations that may be imposed.
Procedures to address all of these matters on a case-by-case basis, under often uncertain and changing conditions.

Collective bargaining agreements or other types of employment contracts may impact the employer’s ability to unilaterally implement a new policy. Employers should consult with their usual employment counsel before taking action that may impact these agreements.

Question: What resources are available to employees sent home due to a workplace shutdown due to COVID-19?

Answer:

The California Employment Development Department (“EDD”) recently announced the following benefits may be accessed by employees depending on their individual circumstances.

Unemployment Insurance
State Disability Insurance
Paid Family Leave

https://www.edd.ca.gov/about_edd/coronavirus-2019.htm

Would I qualify for benefits if my child’s school shuts down and I have to miss work to care for that child who is not ill?

You may be eligible for unemployment benefits. Our EDD representatives will determine eligibility on a case-by-case basis by scheduling a phone interview with you. For example, you may be eligible for unemployment benefits if your employer has temporarily allowed you to work less than full-time hours due to your child care situation. In such case, you may be eligible for reduced benefits based on the amount of your weekly earnings, as long as you meet all other eligibility requirements. The EDD will contact you and your employer for information to determine your eligibility.

Can I collect benefits if my child’s school shuts down and I have to stay home to care for my child if I’m not currently employed or I had to quit work because of my child care needs?

You may be eligible for unemployment benefits. Our EDD representatives will determine eligibility on a case-by-case basis by scheduling a phone interview with you.

What benefits are available if a family member is sick and I have to miss work to care for that person?

If you are unable to work because you are caring for an ill or quarantined family member with COVID-19, you are encouraged to file a Paid Family Leave (PFL) claim. PFL provides up to six weeks, this extends to eight weeks starting July 1, 2020, of benefit payments to eligible workers who have a full or partial loss of wages because they need time off work to care for a seriously ill family member or to bond with a new child. For the purposes of PFL coverage, a family member is defined as seriously ill child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner.

What kind of medical documentation is required to support a claim for PFL benefits?

To be eligible for PFL benefits, you must submit certain medical documentation regarding the family member in your care who is either ill or quarantined due to COVID-19. This requirement can be met by a medical certification for that person from a treating physician or a practitioner that includes a diagnosis and ICD-10 code, or if no diagnosis has been obtained, a statement of symptoms; the start date of the condition; its probable duration; and the treating physician’s or practitioner’s license number or facility information. This requirement can also be met by a written order from a state or local health officer that is specific to your family member’s situation. Absent those documents from a physician or health officer, you may be eligible for an Unemployment Insurance (UI) claim instead. See question #9.

Question: Where can I obtain more information and updates on COVID-19 and the laws discussed in this FAQ?

Answer:

The following resources contain more information and may be updated as circumstances develop:

https://www.eeoc.gov/facts/pandemic_flu.html

https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm

https://www.dol.gov/agencies/whd/fmla/pandemic

https://www.edd.ca.gov/about_edd/coronavirus-2019.htm

https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

https://www.dir.ca.gov/dosh/coronavirus/General-Industry.html