With the COVID-19 pandemic, business as usual has been upended and employers and employees are facing uncharted territory. Schools are closed, businesses are shuttered and many employees are being asked to work from home, while also taking care of children. Many other workers have been laid off. 

Understandably, both employers and employees have questions about what their options are and how to weather the storm. Comstock’s spoke with Roseville-based employment law attorney Drew Lewis about what job protection and wage replacement programs are available in the Capital Region.

If an employee is temporarily unable to work as a result of the coronavirus pandemic, can they still get paid?

Yes, there are several job protection and wage replacement programs in place to help part-time and full-time employees, both at the federal and state levels. In response to the current crisis, President Trump signed the Families First Coronavirus Response Act, which expands coverage under the Family and Medical Leave Act and provides federal paid sick leave under the Emergency Paid Sick Leave Act. The act also requires private health plans to provide coverage for COVID-19 diagnostic testing and related services to employees and their covered dependents, without cost. The law is set to take effect no later than April 2, 2020, and will continue until Dec. 31, 2020.

What does the Emergency Paid Sick Leave Act provide?

The Emergency Paid Sick Leave Act provides federal paid sick leave for all part-time and full-time employees (regardless of the amount of time they have been employed) who are unable to work because of the need to take emergency sick leave, when the employee is: subject to a federal, state or local quarantine or isolation order related to COVID-19; advised by a health care provider to self-quarantine due to COVID-19 concerns; or experiencing COVID-19 symptoms and seeking a medical diagnosis. (The law has been broadened to include workers who are not sick, but affected by COVID-19 in other ways.)

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Employees are entitled to an amount of paid sick time equal to the average number of hours they work during a two-week period. For full-time employees, this means they’ll receive 80 hours of paid sick leave. For part-time employees, it will be less. Employers cannot pay a lesser rate for sick time hours, but instead have to pay employees at their regular hourly rate. If the company provides PTO or vacation time, it cannot require its employees to use that time first before using their federal paid sick time.

What has changed with the Family and Medical Leave Act?

The expanded Family and Medical Leave Act allows an employee to take up to an additional 10 weeks of job-protected leave to care for the employee’s minor child if the child’s school or day care has been closed, or the child care provider is unavailable, for reasons related to COVID-19. The employee must have been employed for at least 30 calendar days. The first 10 days of the emergency leave can be unpaid. The remaining time must be paid at two-thirds of the employee’s regular rate of pay.

Are employees able to take California Paid Sick Leave in addition to federal Emergency Paid Sick Leave? 

Yes, in addition to the 80 hours of federal Emergency Paid Sick Leave, all California employees are entitled to up to 24 hours of California Paid Sick Leave. Typically, one hour of sick leave is accrued for every 30 hours worked.

If an employee’s hours have been reduced, can they still file for California unemployment insurance?

Yes. In response to the current crisis, California’s unemployment insurance program has been expanded to cover employees whose hours have been reduced, in addition to those whose jobs have been terminated. Unemployment insurance provides between $40 and $450 per week, depending on the employee’s income level, for up to 26 weeks.

What if an individual becomes sick or needs to take care of a seriously ill family member while out of work?

Eligible individuals are entitled to benefits through California Paid Family Leave, which provides between $50 and $1,300 per week for six weeks (expanded to eight weeks beginning July 1, 2020) to cover lost wages. California Paid Family Leave is available to current employees, as well as workers who are unemployed but are searching for work.

Are employers able to supplement their employee’s California unemployment insurance without incurring any legal or tax liabilities?

The California Economic Development Department permits employers, in lieu of laying off a portion of its workforce, to start a Work Sharing Plan. The Work Sharing Program allows the employer to reduce an employee’s hours, while still allowing the employee to apply for unemployment insurance. Employers may be able to minimize turnover costs (hiring, onboarding, training) and employees may remain at a job that might not otherwise be financially feasible.

If an employer has to temporarily close their business and lay off employees, what do they need to know if they plan to reopen and rehire employees once the immediate shutdown is over?

One of the important things that employers need to realize is that if an employee is not going to receive work in the near term, the employer needs to pay out all wages to the employee when they temporarily lay the employee off. This includes cashing out any paid time off or vacation pay. It does not require, however, paying out any accrued, but unused, sick time under either California or federal paid sick leave laws. 

Even if the employer is well-intentioned and plans to hire the employee back after business picks back up, the law treats a temporary layoff as a discharge. This discharge requires employers to pay all wages immediately. If they don’t, they could be liable for significant waiting-time penalties.

With so many employees now telecommuting, are employers required to reimburse employees for expenses they’ve incurred when working from home?

Yes, if an employee incurs expenses to do his or her work, the employer must provide reasonable reimbursement to the employee. Some of the more common incurred expenses are internet costs, use of a personal phone and use of a laptop.

What is the government doing to help employers whose businesses were required to close down during the pandemic?

A lot of the programs being discussed have been consumer/worker focused. My understanding is that the stimulus package currently being debated in Congress will provide bridge loans through local banks to cover four months of expenses (with certain requirements, of course).

California’s Franchise Tax Board also recently deferred the 2019 tax deadline until July 15. Additionally, corporations have to pay quarterly payments based on their annual estimated revenues. The first quarter payment, which is normally due between March 15 and April 15, has been extended to July 15. This should ease many of the pressing financial burdens on small businesses. 

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