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Coronavirus Q&A -  California Update 3/18/2020

This information, like all services and materials provided by RSJ/Swenson, are offered and sold with the understanding that it is not engaged in rendering legal counseling or other professional service.  If legal counseling or other professional assistance is required, the services of a competent practitioner in the relevant area should be sought.

Thanks to our numerous friends and partners including LightGabler, Arthur J. Gallagher, FordHarrison, Michelman & Robinson, & more.

 

What about employees who can't work remotely but need to take time off?

There are numerous options for employees who want to take time off. It basically depends whether that time off is going to be paid or unpaid.

 

Employees may use their paid vacation or PTO for any reasons. While most employers have specific advance notice requirements when employees request vacation, consider waiving those notice requirements for your workers at this time of crisis and allowing them to take vacation immediately. Employees can be expected to apply available vacation to personal time off before taking unpaid time off; this is a business decision for the company (but make sure you are consistent with all employees).

 

School Leave: If you have at least 25 employees, you must grant unpaid “school leave” in situations that include unexpected school closures. The maximum leave available is 40 hours per school year, but no more than eight hours per month. This may be beneficial to employees if they have available childcare options but must arrive late or leave early to work within those childcare schedules. For employees who want to work remotely, consider allowing remote work if at all possible, or grant non-working time off if working from home is not possible.

Unpaid personal time off: Employers may not typically provide unpaid personal time off, but may consider doing so during mandatory school closures related to a public health crisis. Do the right thing for your employees and consider this, and you  can remind everyone this is not usually granted but is being implemented as a courtesy during this crisis.

"Borrowing" Paid Vacation/PTO: Some companies are granting employees the right to “go negative” on their available sick, vacation and PTO balances, even if this is not typically permitted. A caution: you can't deduct negative balances from final pay if an employee leaves with a negative balance on the books, so this may turn out to be a gift to employees who leave before recovering the negative. But this seems a small and unlikely price to pay.

 

 

Can I ask an employee to stay home if I suspect they have Coronavirus?

 

If an employee is exhibiting symptoms related to COVID-19 (i.e., cough, shortness of breath, fever) you may ask the employee to leave work and stay home until the employee is symptom-free. While the CDC recommends a person recovering from the flu stay home until at least 24 hours after the person is symptom free, with COVID-19, the CDC recommends consulting with a healthcare provider and state/local health departments to determine when it is OK to return to work.

Can I reduce employee hours or temporarily lay off employees?

Yes, but. Almost all employees in California and most states are "at-will". But a great deal depends on what that "lay off" means, for how long, etc. We strongly urge you to talk to your RSJ/Swenson HR Consultant or counsel if you're considering this option.

Please describe a company’s ability to layoff or terminate.

It depends on the state the employee is in, and whether the employee has a contract or is subject to a collective bargaining agreement. But the vast, vast majority of employees are considered “at-will” – meaning you have the right to terminate, reduce hours, lay off, reduce pay, etc. if for a legitimate business reason and not based on discriminatory reasons (such as religion, gender, etc. etc.). Discrimination is also determined by individual states as well as federal.

Many businesses may be subject to the federal WARN Act (and several states, including California, have their own WARN Act).

Generally, California labor law is more protective of worker rights than federal law. The WARN Act is no exception. For example, companies may get an exemption from the federal WARN Act if the company shows that the mass layoffs were due to unforeseeable business circumstances. California has no such exemption.

 

Can we mandate that people use their sick time during the next 4-6 weeks?

We don’t think this is a good idea.

Can we mandate that people use their vacation time during the next 4-6 weeks?

Why would you mandate it? Employees who are laid off will get their unused vacation time paid at time of termination. Others, who see their pay reduced, might take paid vacation first. We suggest you let the employee decide.

Can we arbitrarily institute a percentage pay cut for salaried employees?

Arbitrarily and conceptually? Yes. But it needs to be consistent throughout the business. This is truly a phone call.

 

And as always....

There are many more laws that impact your business.  That's why we're here!  Make sure to contact RSJ/Swenson's team of Human Resources specialists to make sure you're always in compliance.