We write to you today to inform you of some compliance action items and informational updates.
We are continuing to monitor developments of special importance to our clients that are occurring at the county, state and federal level.
April 17, 2020
❏ Implement a Remote Work Policy- We recommend you adopt a remote work policy applicable to the current work from home situation to clearly define rights and responsibilities and to make sure employees know that remote work will not become the norm for your business.
❏ Evaluate Expense Reimbursement for Remote Workers– Labor Code section 2802 requires employers to indemnify employees for “necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” The Division of Labor Standards Enforcement states, “The test for recovery under section 2802 is whether the expense or loss was incurred within the course and scope of employment.” This is broadly interpreted in the employee’s favor. If your remote workers are incurring expenses working from home (i.e. home internet, use of a personal computer, cell phone) they should be reimbursed a reasonable amount for the business-related use of these expenses.
❏ Provide the Notice to Employee, Labor Code 2810.5 form– If you reduce employees’ pay, you are required to provide this notice within 7 days of the change. Find the form here: https://www.dir.ca.gov/dlse/lc_2810.5_notice.pdf
❏ Post and Provide the Families First Coronavirus Response Act Posters– Employers are required to post these notices in the workplace and distribute them to employees who are working remotely. The posters are available in 10 languages at https://www.dol.gov/agencies/whd/posters. A question and answer document from the Department of Labor about the posting of the notice is available at https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions.
❏ Implement Mandatory Social Distancing Protocol- Monterey County requires all Essential Businesses to prepare a social distancing protocol to explain how the business is achieving social distancing as required by the County’s April 3, 2020 Shelter in Place order. The County encourages businesses to use a form available at https://www.co.monterey.ca.us/home/showdocument?id=88419.
The form is also available in Spanish at https://www.co.monterey.ca.us/home/showdocument?id=88479
The Social Distancing Protocol must be posted at or near the entrance of the facility and must be easily viewable by the public and employees. A copy of the Social Distancing Protocol must also be provided to each employee, including electronically for remote workers.
❏ Consider the Consequences of Layoff v. Furlough- The emergency sick leave and expanded FMLA benefits provided by the Families First Coronavirus Response Act do not apply to employees who have been laid off. Laying off employees, even if the employer intends to return them to work later, is interpreted by the California Labor Commissioner as a termination. If an employer instead furloughs its employees, that may also be interpreted as a termination unless the employer informs the employees of a definite return-to-work date within the regular pay period. At the time of termination, all wages, including vacation or paid time off, must be paid.
❏ Comply with WARN Notice Obligations- The California Worker Adjustment and Retraining Notification (WARN) Act requires employers to provide 60-days notice to employees who are subject to a mass layoff, relocation, or termination at a covered establishment. The WARN Act also requires employers to notify the Employment Development Department, the Local Workforce Development Board, and the chief elected official of each city and county government within which the termination, relocation, or mass layoff occurs. On March 17, 2020 Governor Newsom issued an Executive Order modifying the required notice. Employers who implemented a mass layoff or termination should review the information at https://www.edd.ca.gov/about_edd/coronavirus-2019/faqs/WARN.htm to make sure they have complied with WARN Act procedures and notice requirements.
❏ New Benefits for Self Employed Individuals- Pandemic Unemployment Assistance- As part of the federal CARES Act, the new Pandemic Unemployment Assistance (PUA) program helps unemployed Californians who are business owners, self-employed, independent contractors, have limited work history, and others not usually eligible for regular state unemployment benefits who are out of business or whose services are significantly reduced as a direct result of the pandemic. The EDD will begin accepting claims on April 28, 2020. For more information visit https://www.edd.ca.gov/about_edd/coronavirus-2019/pandemic-unemployment-assistance.htm
❏ I-9 Compliance Flexibility for New Hires – The Department of Homeland Security announced that employers may onboard new employees by using remote employment eligibility verification. Employers who are taking physical proximity precautions due to COVID-19 may inspect documents listed in Section 2 of the I-9 remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents within three business days for purposes of completing Section 2. These provisions may be used until May 19, 2020 OR within 3 business days after the termination of the National Emergency, whichever comes first. Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. For specific details on remote verification see https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance#wcm-survey-target-id
We are continuing to work and are fully available to provide legal services to address your needs. The well-being of our employees, clients, business partners and community remains our constant priority. We remain receptive to any suggestions that would make you more comfortable while working with us. We value our relationship with you and are committed to staying connected and helping you through this extraordinary time.