Dear Clients and Friends:
We hope you are faring well in this landscape of ever-changing health, news and laws.
Welcome to Friday Five, where we share the Top Five Things You Need to Know This Week to protect your work community and help it thrive. As always, please reach out with any questions, we are here for you. And if you are curious about our prior Friday Five or other newsletters, you will find that here.
(1) Employees are Returning to Work! The EEOC Issued New Guidance on What You Can and Can't Do.
Employers are stuggling to balance the health, safety and productivity of the entire workplace with the rights of the employee. In response, the Equal Employment Opportunity Commission ("EEOC") has published a series of helpful "FAQs" about what you can and cannot ask or do when an employee presents or may present with COVID-19 symptoms. Here is a link to the FAQs.
Several of the FAQs address how to handle accommodation requests. The EEOC advises that employers still are permitted to ask workers for medical documentation and information to analyze whether the worker has a disability that requires an accommodation. Note: some of the EEOC advice on the ADA differs from the requirements of the Emergency Paid Sick Leave ("EPSL") laws (for example, you should not require a doctor's note for EPSL), so be careful in how you address each.
Also of note, the EEOC advises that employers can bypass the "interactive process" requirements and simply grant accommodation requests under the current circumstances of the pandemic. Employers can also provide specific end dates on accommodations (keeping in mind extension may be warranted in different cases). Interestingly, the EEOC offers input on analyzing "undue hardship" and notes that in the current climate, an employer may experience undue hardship that may not have existed before the crisis.
The EEOC also advises that employers can make inquiries and conduct medical exams if they are necessary to protect the workplace from a "direct threat to health or safety," and reminds employers that while they can require protective gear (masks and gloves, for example) and engage in infection control practices such as hand washing, they should also be ready to interact with employees about disabilities and religious accommodation issues that might arise under the new workplace protocols (for example, if an employee needs non-latex gloves or a modified face mask, or modified equipment due to religious garb).
On April 23, the EEOC updated these FAQs again to address the question of whether an employer may administer a COVID-19 test before permitting employees to enter the workplace. The short answer? Employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
The EEOC also has created a helpful page that consolidates relevant guidance on COVID-19, which can be found here.
(2) And on the Subject of Safety Measures: Be Mindful of Wage and Hour and Reimbursement Implications.
Are you requiring employees to work remotely? Remember, you will need to reimburse a pro-rata portion of at least their technology costs as a result. Are you requiring that employees have their temperature taken before they enter the workplace? This may be compensable working time. Are you requiring that employees use new safety equipment? The employer will be responsible for the expense.
(3) The DOL has Issued New Guidance.
On April 20, the Department of Labor ("DOL") supplemented its guidance on the Families First Coronavirus Response Act, and increased its FAQs from 59 to 88 questions. Here is a link to the DOL FAQs. Of note:
- Employers may require employees to use accrued vacation (but not sick leave, and so probably not PTO) concurrently with Emergency Family Medical Leave ("EFML") to supplement their EFML compensation;
- Employers must use different methods for calculating the average number of hours an employee is entitled to be paid during EPSL and EFML. For EPSL, an employer must average hours worked on all calendar days in the six months preceding the start of EPSL. For EFML, the employer must average all hours worked on scheduled work days in the six months preceding the EFML. For both EPSL and EFML, unpaid leave hours are included in the calculations.
- Employers only need to calculate the average regular rate once for an employee who takes multiple periods of EPSL or EFMLm and may use the first calculation for all leave taken.
- Employers may elect to provide EPSL and EFML benefits to health care providers and emergency responders in some circumstances and deem them exempt from those benefits in others. For example, allowing EPSL taken for their own illness but denying it for child care purposes.
(4) California Food Sector Workers Are Entitled to Enhanced Sick Leave Benefits.
Workers in the food sector, including farmworkers, agricultural workers, those working in grocery stores and fast food chains, along with delivery drivers, are entitled to two weeks of supplemental paid sick leave if they are subject to a quarantine or isolation order or medical directive. Governor Newsom's Executive Order also provides health and safety standards to increase worker and customer protection by permitting workers at food facilities to wash their hands every 30 minutes, or as needed, to increase proper sanitation measures.
(5) Are You Keeping An Eye on Local Ordinances?
We previously shared expansion of paid sick leave for Los Angeles employers and employees. Here is a link to that Public Order.
Several San Francisco Bay Area counties have amended their existing orders on social distancing protocols to include new face covering requirements. In San Francisco, Marin, Contra Costa, San Mateo, and Alameda counties, all people are required to wear face coverings when visiting certain essential businesses, working, seeking medical care, or waiting for or riding on shared transportation. These orders were effective April 17, and became enforceable on April 22, 2020. Fresno County issued an order requiring both face coverings and illness screenings for all employees and visitors, but not customers, of certain essential businesses. Keep a close eye on the orders and ordinances in the cities and counties in which you have employees or do business! And reach out to us for the latest news.
Link to Opportunities for Growth: Empower Your Employees in the Face of a Pandemic
This challenging time period may be the best time to provide your employees with tools to not only survive but thrive in the face of this pandemic. Reknown speaker, author, coach and overall great human Dan Negroni from LaunchBox is hosting a free webinar on April 30, 2020 at 9am and 11am pst on How to Cultivate and Teach Resilience to Your Team. Here is a link to details on the webinar, and we encourage you to learn with us there.
We Are Here For You
We hope this information is helpful as you navigate the recent developments. Please stay tuned, we will continue keeping you updated. Please stay in touch. You are in our thoughts constantly. And please, reach out if you have questions or just want to talk! As always, we are sending you wishes of health, gratitude and well-being.
As always, we are sending you wishes of health, gratitude and well-being.