News & Events

Employee Handbook and Policy Changes Due to the Coronavirus Pandemic

by Sara Boyns

July 24, 2020

Question:  My business normally employs 25-35 employees.  Since March that number has fluctuated, and I have had to adopt policies to address the coronavirus pandemic, but I’m worried there may be other policies I need.  What types of policies need to be created or revised?

Answer:  It is important to make sure your written policies match your practices.  The coronavirus pandemic has altered the way most employers are doing business, so it is wise to review your policies and adopt new ones if needed.  Here is a non-exhaustive list of some policy considerations to review or create:

Paid Leave

• Paid leave under the Families First Coronavirus Response Act (FFCRA) is available to eligible employees until December 31, 2020.  A separate policy is not required since there is an expiration date for this benefit, but make sure you have communicated with employees about this benefit and posted the required posters.  Also create a way to track FFCRA time used and collect supporting documentation for tax credit purposes.
• Clarify time-off request procedures to explain when time off can be required by the employer in case sick employees need to be sent home (paid or unpaid).

Attendance/Scheduling

• Revise policies to encourage sick employees to stay home when they have symptoms and allow employees to use paid sick leave if they have coronavirus symptoms, even if they do not feel sick.
• Communicate adjusted or staggered work shifts, and meal and rest breaks implemented to encourage physical distancing.

Safety

• Explain physical distancing practices, employee health screening policies, visitor screening practices, and other safety measures.
• Describe personal protective equipment (PPE) requirements and provide necessary PPE, including face masks.
• Implement an infectious disease control policy.
• Update your Illness & Injury Prevention Program to comply with new coronavirus-related Cal/OSHA requirements: https://www.dir.ca.gov/dosh/coronavirus/General-Industry.html
• Adopt and communicate procedures for employee reporting of a positive COVID-19 case at the worksite and the employer’s response plan, including quarantine requirements and return-to-work procedures.

Telecommuting

• Update telecommuting policies to identify the type of work or specific positions that are eligible for remote work and the procedures for requesting telework.
• Revise business expense reimbursement policies to include eligible telecommuting-related costs and reimbursement procedures.
• Clarify supervision and performance expectations for remote workers including timekeeping requirements, availability, and safety procedures for the remote workspace.

Technology

• Revise information technology policies to describe how they apply to remote work.
• Obtain or expand video and teleconferencing capabilities as needed, and provide training on the use of new technology.

Travel

• Update travel policies to explain essential versus nonessential travel and the impact of domestic or global travel restrictions.
• Review quarantine policies to address both business and personal travel, including pay arrangements when telecommuting is not possible.

Layoff/Recall

• Consider adopting a policy describing layoff and recall procedures, which include information on whether and for how long benefits may continue.
• Explain potential eligibility for partial unemployment insurance benefits for employees with reduced hours due to the pandemic.
• Provide training and information to returning employees regarding safety and new return to work procedures.
• Redetermine benefit eligibility for rehired employees as applicable.
• Process new hire paperwork for rehired employees.

Some of these procedures may be incorporated into existing policies, or employers may wish to draft an employee handbook addendum containing policies unique to the coronavirus pandemic.  Either way, clear communication of new procedures and your expectations is important.

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Remember AB5? New Legislation Pending to Expand Exemptions for Independent Contractors

by Sara Boyns

July 10, 2020

Question: I’m still trying to figure out if I can hire independent contractors to do periodic work for my business.  What is the status of the independent contractor classification law in California?

Answer:  In 2018 the California Supreme Court adopted the ABC test, an employment-classification test in California that presumes workers are employees rather than independent contractors. Under this test, the burden is on the employer to demonstrate that every worker is not an employee by proving all three of the following:

• The worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact.

• The worker performs work that is outside the usual course of the hiring entity's business.

• The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring entity.

The ABC test was then codified in 2019 in Assembly Bill 5. The debate over worker misclassification and the disparate economic impacts of the ABC test generated significant interaction between state legislators and groups seeking modifications to the law. On July 13, 2020 when the California Legislature reconvenes from summer recess, it will consider Assembly Bill 1850, which exempts from the ABC test certain business relationships where the hiring entity does not exercise a significant degree of control over the worker. The stated intent of AB 1850 is to clarify relationships where workers are free from employer direction while ensuring key labor rights and protections for those both inherently and at risk of being misclassified.

AB 1850 would exempt certain workers from the 3-part ABC test for employment status and instead apply the test set forth in the California Supreme Court's decision in S.G. Borello & Sons, Inc. v. Department of Industrial Relations. The legislation would exempt certain occupations, including:

• Musicians or musical groups for the purpose of a single-engagement live performance event, subject to certain conditions;
• Individuals creating, marketing, promoting, or distributing sound recordings or musical compositions, including, but not limited to, recording artists, musicians, songwriters, composers, record producers, and musical engineers;
• The professional services of a still photographer, photojournalist, videographer, or photo editor who works under a contract with specified terms, as long as the individual providing the services is not replacing an employee performing the same work at the same volume, the individual does not primarily perform the work at the hiring entity's business location, and the individual is not restricted from working for more than one hiring entity;
• The professional services of a freelance writer, certified translator, editor, copyeditor illustrator, or newspaper cartoonist if the individual works under a contract with specified terms, is not replacing an employee performing the same work at the same volume, does not primarily perform the work at the hiring entity's business location, and is not restricted from working for more than one hiring entity; and
• Competition judges who have a specialized skillset or expertise and provide services requiring the exercise of discretion and independent judgment to an organization in order to determine competition outcomes.

The text of AB 1850 is here: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB1850

It is expected that this bill will be amended in the coming months, so if you have input on this legislation, now is the time to contact your legislator.

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Employee’s COVID-19 Exposure at Work

by Fenton & Keller

June 26, 2020

Question: I heard that employees who contract COVID-19 at work are automatically entitled to workers’ compensation benefits.  Is this true? If so, what am I required to do if my employee tells me he/she contracted COVID-19 at work?

Answer: On May 6, 2020, Governor Newsom signed Executive Order N-62-20 (https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf) which provides that an employee who contracts any COVID-19 related illness between March 19, 2020 and July 5, 2020 is presumed to have contracted it at his or her jobsite, making the employee eligible for workers’ compensation benefits if all of the following conditions are met:

1. The employee was diagnosed by a medical doctor who holds a physician and surgeon license issued by the California Medical Board or tested positive within 14 days after a day the employee worked, at the direction of the employer, at the employer’s job site, excluding the employee’s home or residence;

2. If the employee was diagnosed by a medical doctor, the diagnosis must be confirmed by a further testing within 30 days of the date of the employee’s medical diagnosis; and

3. The employee must have worked at the employer’s jobsite on or after March 19, 2020.

An employee who meets these criteria is presumed to have contracted COVID-19 at work regardless of whether the employee was providing essential services.  The presumption applies to all employers (not just essential businesses) and regardless of the number of employees employed.  An employer can dispute this presumption by presenting evidence that the employee did not contract COVID-19 at work.  Employers have 30 days to investigate an employee’s claim and decide whether to accept or deny the employee’s claim. If an employer fails to deny an employee’s claim within 30 days, the COVID-19 claim is presumed to be a compensable workers’ compensation claim.  However, an employer can still rebut the presumption if evidence is discovered after the 30-day period.

This workers compensation presumption favors employees and employers because it makes it simpler for employees to qualify for benefits, and, in most cases, limits employee damages to those provided by the workers compensation program.

All employers have a duty to determine whether the employee contracted COVID-19 at work pursuant to the new Occupational Safety and Health Administration (OSHA) requirements.  Employers must perform a reasonable investigation to determine if the employee was exposed to COVID-19 at work based on information reasonably available to it at the time of its investigation.  Employers should ask certain key questions about the employee’s work environment to determine if exposure was possible and refrain from making inquiries that would violate the employee’s right to privacy.

Unless an employer has 10 or fewer employees or is in certain low-hazard industries, if it determines the employee has a confirmed case of COVID-19, contracted it at work, and the illness resulted in the employee’s death, loss of consciousness, absence from work, work restrictions, or required more than first aid treatment, the employer must record the illness on OSHA Form 300 (“Log of Work-Related Injuries and Illnesses”).  Low-hazard industry employers are only required to report work-related COVID-19 illnesses if they result in the employee’s death, in-patient hospitalization, amputation, or loss of an eye.  A complete list of low hazard industries can be viewed at

https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904SubpartBAppA

If you are unsure what you should do if your employee tells you he/she has contracted COVID-19 at work, you should contact an attorney and take the necessary precautions to ensure your employees, customers and public remain safe.

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Questions from Employees Returning to Work

by Sara Boyns

May 29, 2020

Question: As businesses begin to reopen, my employees are asking questions regarding their return to work.  What should I anticipate?

Answer: Naturally, as employees begin to return to their workplaces after weeks of sheltering in place under COVID-19 stay-at-home orders, they will have questions. When answering employee questions, be clear and consistent, but also recognize that you will need to remain flexible as guidance changes and we learn more about the coronavirus.  These are some of the common questions employees may ask:

1. Can I refuse to return to work?

Generally, employers have the right to require employees to return to work if the employer is permitted to return employees to the worksite, and the employer has taken the safety steps currently required by state and federal law.  If an employee who has been working remotely refuses to return, it is important to find out why because the employee may be eligible for Families First Coronavirus Response Act (“FFCRA”) leave or other medical or family care leave. Depending on the employee’s reasons for refusing to return, you may decide to allow the employee to continue to work remotely for another few weeks.

If an individual who was laid off refuses an employer’s offer to return to work, the individual is not entitled to a leave of absence because the individual is no longer your employee.  According to the Employment Development Department, individuals who refuse to accept work will normally be disqualified from receiving unemployment benefits unless their refusal is legally protected.  In all cases, it is important to communicate with employees and try to handle these situations with care and compassion.

2. How will my employer keep me safe from contracting the virus?

All employers are required to take steps to protect their employees from exposure to COVID-19, including performing a risk assessment and instituting a protection plan, and training employees on limiting the spread of the disease and how to perform self- screening.  All employers must implement control measures, screening, disinfectant protocols, and physical distancing guidelines. Additional steps vary by industry, and industry specific guidance can be found at the following link: https://covid19.ca.gov/industry-guidance/. Communication and enforcement of your company’s plan is critical in assuring employees that you have taken steps to ensure their safety according to current guidelines.

3. Does the company have the right to ask about my health and take my temperature?

Yes, employers are allowed to ask about coronavirus-related symptoms and to take employees’ temperatures.  Employers may also send employees home if they report to work with symptoms of COVID-19 and may ask employees who report feeling ill at work, or who call in sick, about their symptoms to determine if they may have COVID-19. These measures must be consistently implemented and the information must be treated as a confidential medical record. If temperature taking at the workplace is mandated, the time spent being tested and waiting for a test is considered compensable time.

4. What if a co-worker gets coronavirus? Will I be informed?

Yes, employees who have had contact with a co-worker who tests positive for the coronavirus should be informed, but the employer will not identify the ill co-worker by name because this is confidential medical information.  Employers should contact their local health department for further guidance.

As employers develop plans to return to a more “normal” workplace reopening, they should communicate with employees often and consistently.

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