COVID-19 (“Coronavirus”) Legal Update 2020-03-23

Please be aware that new laws are being passed in response to the virus on an almost daily basis. We are doing our best to keep up with the laws. This memo is only good as long as the laws do not change, so whenever you have a question, please check with us for any updates.


THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT

This Act was signed by President Trump on 3/18/20, which means it goes into effect on 4/2/20, and remains in effect until 12/31/20.

TEMPORARY CHANGES TO THE FAMILY MEDICAL LEAVE ACT (“FMLA”)

The current employee threshold for FMLA coverage changes from only covering employers with 50 or more employees to instead covering those employers with fewer than 500 employees. It also lowers the eligibility requirement such that any employee who has worked for the employer for at least 30 days prior to the designated leave may be eligible to receive paid family and medical leave.

Any individual employed by the employer for at least 30 days (before the first day of leave) may take up to 12 weeks of job-protected leave to allow an employee, who is unable to work or telework, to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency. This is now the only qualifying need for Emergency FMLA.

Now, the first 10 days (rather than 14 days) of Emergency FMLA may be unpaid. During this 10-day period, an employee may elect to use any accrued paid leave (like vacation or sick leave) to cover some or all of the 10-day unpaid period. After the 10-day period, the employer must pay full-time employees at two-thirds the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled. The new Act now limits this pay entitlement to $200 per day and $10,000 in the aggregate per employee.

Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking Emergency FMLA. Employees who have worked for less than six months prior to leave are entitled to the employee’s reasonable expectation at hiring of the average number of hours the employee would normally be scheduled to work.

Employers with 25 or more employees will have the same obligation as under traditional FMLA to return any employee who has taken Emergency FMLA to the same or equivalent position upon the return to work. However, employers with fewer than 25 employees are generally excluded from this requirement if the employee’s position no longer exists following the Emergency FMLA leave due to an economic downtown or other circumstances caused by a
public health emergency during the period of Emergency FMLA. This exclusion is subject to the employer making reasonable attempts to return the employee to an equivalent position and requires an employer to make efforts to return the employee to work for up to a year following the employee’s leave.

CHANGES TO THE EMERGENCY PAID SICK LEAVE ACT

This Act now allows eligible employees to take paid sick leave if the employees are any one of the following:

  1. Subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. Advised by a health care provider to self-quarantine due to COVID-19 concerns;
  3. Experiencing COVID-19 symptoms and seeking medical diagnosis;
  4. Caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns (this is a significant change, in that the person the employee is caring for because they are subject to an isolation order or advised to self-quarantine is no longer limited to just family members);
  5. Caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
  6. Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

This provision requires employers with fewer than 500 employees to provide full-time employees (regardless of the employee’s duration of employment prior to leave) with 80 hours of paid sick leave at the employee’s regular rate (or two-thirds the employee’s regular rate to care for qualifying reasons 4, 5, or 6 listed above).

Paid sick leave wages are limited to $511 per day up to $5,110 total per employee for their own use and to $200 per day up to $2,000 total to care for others and any other substantially similar condition.

This paid sick leave will not carry over to the following year and may be in addition to any paid sick leave currently provided by employers.

Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking paid sick leave. Employees who have worked for less than six months prior to leave are entitled to the average number of hours the employee would normally be scheduled to work over a two-week period. A business employing fewer than 500 employees is required, at the request of the employee, to pay a full-time employee for 80 hours of mandated emergency paid sick leave
instead of the initial 10 days of unpaid leave permitted by the Emergency Family and Medical Leave Expansion Act.

THE CALIFORNIA STAY-AT-HOME-ORDER

On March 19, 2020, California Governor Gavin Newsom issued Executive Order N-33-20, requiring all Californians to stay at home indefinitely, except those falling within an exception stated below. The exceptions are intended to maintain the continuity of critical infrastructure sectors. Therefore, employees in the following sectors are exempt from the Executive Order and may continue working. Persons who violate the order can face criminal prosecution for a misdemeanor punishable by up to $1,000 and/or six months in prison.
Businesses that violate the Executive Order may be sued by (a) the Attorney General or (b) any person or entity harmed by the unfair competition (which could include a business’ competitors) for injunctive relief, restitution and attorneys fees. An employee who refuses to come to work in
a business that is not exempted from the Executive Order and is subjected to disciplinary action, termination or other negative consequences could sue for unlawful retaliation or wrongful termination in violation of public policy:

Healthcare/Public Health – Including physicians, dentists, psychologists, veterinarians, mid-level practitioners, nurses and assistants, infection control and quality assurance personnel, pharmacy employees, social workers, hospital and laboratory personnel, physical and occupational therapists, diagnostic and
therapeutic technicians and technologists, employees of clinics and blood banks, and employees of manufacturers and distributors of medical equipment, medical supplies, pharmaceuticals, and cleaning and sanitizing supplies.

Emergency Services – Including law enforcement officers, Emergency
Management Systems personnel, search and rescue personnel, private security, county workers responding to reports of abuse and neglect (for children, elder and dependent adults), workers supporting the operation and maintenance of essential public works (including dams, locks, levees, bridges, and water and sewer main breaks), plumbers, electricians, and exterminators.

Food and Agriculture – Including workers supporting grocery stores, pharmacies, and other stores that sell food and beverage products; employees of restaurant carry-out and quick-serve food operations; food manufacturing and processing employees; farmworkers; and cannabis and dietary supplement retail workers.

Energy – Including employees involved in all aspects of the generation, transmission, and distribution of electricity, petroleum, and natural and propane gas.

Water and Wastewater – Including employees needed to operate and maintain drinking water and wastewater/drainage infrastructure.

Transportation and Logistics – Including warehouse workers, employees of logistics and distribution companies, mass transit workers, taxi and delivery drivers, maritime and railroad employees, private and public postal shipping workers, employees of automotive repair and maintenance facilities, employees in the aviation industry (including air cargo operations), and employees who repair and maintain vehicles, aircraft, rail equipment, marine vessels and other
equipment involved in the movement of cargo and passengers.

Communications and Information Technology – Including employees of wireline and wireless providers, cable service providers, and radio, television, and media services. Also data center, communications center, and service center employees and workers who support information technology infrastructure for cloud computing, business computing, web-based services, and other IT applications.

Other Community-Based Government Operations and Essential Functions – In addition to various governmental workers, this category includes security staff, construction workers, employees of commercial retail stores that supply essential sectors (including auto supplies and repair, hardware and home repair, pet supplies and home appliances), professional services (law and accounting) firms
that assist in compliance with legally mandated activities and critical sector services, faith-based services that are provided through streaming or other technology, laundromats, and laundry services, and rental car companies. It also includes workers supporting public and private childcare establishments, pre-K establishments, K-12 schools, colleges, and universities for purposes of distance learning, provision of school meals, or care and supervision of minors to support essential workers across all sectors.

Critical Manufacturing – Including workers necessary for the manufacturing of materials and products needed for medical supply chains, transportation, energy, communications, food and agriculture, chemical manufacturing, nuclear facilities, the operation of dams, water, and wastewater treatment, emergency services, and the defense industrial base.

Hazardous Materials – Including workers at nuclear facilities, workers managing medical waste, workers managing waste from pharmaceuticals and medical material productions, workers at laboratories processing test kits, and workers who support hazardous material response and cleanup.

Financial Services – Including workers who process and maintain systems for processing financial transactions and services (including insurance services, wholesale funding, and settlement and clearing services), who provide consumer access to banking and lending services, and who support financial operations.

Chemical – Including workers in chemical manufacturing plants, laboratories, and distribution facilities; employees involved in transportation of raw materials and chemicals; and workers involved in the production of protective and cleaning medical solutions, personal protective medical and packaging which prevents the
contamination of essential products such as food, water, and medicine.

Defense and Industrial Base – Including employees of contractors and
subcontractors necessary to meet national security commitments to the federal government and U.S. military in an array of industries, including aerospace, mechanical and software engineers, manufacturing/production, IT, security, intelligence, and aircraft mechanics and maintenance personnel.

LOS ANGELES SAFER AT HOME ORDER FOR CONTROL OF COVID-19

On March 19, 2020, Los Angeles Mayor Eric Garcetti issued a Health Officer Order to further restrict and limit the gathering of people and to require the closing of malls, shopping centers, playgrounds, and non-essential retail businesses. This applies only to the City of Los Angeles and excludes Pasadena and Long Beach (because they have their own health departments). The Order is in place until April 19, 2020. This largely impacts social activities but also impacts what businesses may stay open, and essentially only allows businesses providing essential services to stay open. Essential businesses are defined as the following:

(a) All healthcare operations, including hospitals, clinics, dentists, pharmacies, pharmaceutical, and biotechnology companies, medical and scientific research, laboratories, healthcare suppliers, home healthcare services providers, veterinary care providers, mental and behavioral health providers, substance use providers, physical therapists and chiropractors, cannabis dispensaries, or any related and/or ancillary healthcare services, manufacturers and suppliers. Healthcare operations do not include fitness and exercise gyms and similar facilities.
(b) Grocery stores, water retailers, certified farmers’ markets, farm and produce stands, supermarkets, convenience stores, warehouse stores, food banks, convenience stores, and other establishments engaged in the retail sale of canned food, dry goods, fresh fruits and vegetables, pet supply, fresh or frozen meats, fish, and poultry, any other household consumer products (such as construction supplies, cleaning, and personal care products). This includes stores that sell groceries and sell other non-grocery products, and products necessary to maintain the safety, sanitation, and essential operation of residences.
(c) Food cultivation, including farming, livestock, and fishing.
(d) Organizations and businesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals (including gang prevention and intervention, domestic violence, and homeless services agencies).
(e) Newspapers, television, radio, magazine, podcast and other media services.
(f) Gas service stations, auto supply, mobile auto repair operations, auto repair shops (including, without limitation, auto repair shops that operate adjacent to or otherwise in connection with a used or retail auto dealership), bicycle repair shops and related facilities.
(g) Banks, credit unions, financial institutions, and insurance companies.
(h) Hardware and building supply stores, and nurseries.
(i) Plumbers, electricians, exterminators, custodial/janitorial workers, handyman services, funeral home workers and morticians, moving services, HVAC installers, carpenters, landscapers, gardeners, property managers, private security personnel and other service providers who provide services to maintain the safety, sanitation, and essential operation to properties and other essential activities discussed in this subsection.
(j) Businesses providing mailing and shipping services, including post office boxes.
(k) Educational institutions — including public and private K-12 schools, colleges, and universities — for purposes of facilitating distance learning or performing essential functions provided that social distancing of six-feet per person is maintained to the greatest extent possible.
(l) Laundromats, dry cleaners, and laundry service providers.
(m) Restaurants and retail food facilities that prepare and offer food to customers, but only via delivery service, to be picked up, or drive-thru. For those establishments offering food pick-up options, proprietors are directed to establish social distancing practices for those patrons in the queue for pick-up. This includes maintaining a distance of at least six feet away from others. Schools and other entities that typically provide free food services to students or members of the public may continue to do so under this Order on the condition that the food is provided to students or members of the public on a pick-up and carry out basis only. Schools and other entities that provide food services under this exemption shall not permit the food to be eaten at the site where it is provided, or any other gathering site. Cafeterias, commissaries, and restaurants located within hospitals, nursing homes, or similar facilities are also exempt from this Order. Social distancing shall be maintained at a distance of at least six feet away from others
(n) Businesses that supply products needed for people to work from home.
(o) Businesses that supply other essential businesses with the support, services, or supplies necessary to operate, provided that strict social distancing is maintained.
This section includes, without limitation, utility companies.
(p) Individuals and businesses that ship or deliver groceries, food, beverages or goods directly to residences or businesses, including rail and trucking.
(q) Airlines, taxis, ride-sharing services, and other private transportation services providing transportation services necessary for essential activities and other purposes expressly authorized in this Order.
(r) Home-based care for disabled persons, seniors, adults, or children.
(s) Residential facilities and shelters for homeless residents, disabled persons, seniors, adults, children, and animals.
(t) Professional services, such as legal, payroll or accounting services, when necessary to assist in compliance with legally mandated activities.
(u) Childcare facilities providing services that enable employees exempted in this Order to work as permitted. To the extent possible, childcare facilities must operate under the following mandatory conditions:
(1) Childcare must be carried out in stable groups of 12 or fewer (“stable” means that the same 12 or fewer children are in the same group each day).
(2) Children shall not change from one group to another.
(3) If more than one group of children is cared for at one facility, each group shall be in a separate room. Groups shall not mix with each other.
(4) Childcare providers shall remain solely with one group of children.
(v) Hotels, motels, shared rental units and similar facilities.
(w) Military/Defense Contractors/FFRDC (Federally Funded Research and
Development Centers).

For purposes of this Order, essential personnel may leave their residence to provide any service or perform any work deemed essential for national security including, without limitation, defense, intelligence, and aerospace development and manufacturing for the Department of Defense, the Intelligence Community, and NASA and other federal government, and or United States Government departments and agencies. Essential personnel includes prime, sub-prime, and supplier contractor employees, at both the prime contract level and any supplier level at any tier, working on federal United States Government contracts, such as contracts for national intelligence and national security requirements.

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