On March 5, 2020, in a FisherBroyles client alert, I provided some answers to several pressing general questions that employers might have about managing their workforce during this turbulent time. If you missed the alert, you can read it here. If we know one thing about this Coronavirus or COVID-19, we know that the situation is fluid.
In California, known for its extremely employee-friendly policies, the Department of Industrial Relations released the following state-specific guidance (which I’ve modified slightly for brevity):
1. Can an employee use California Paid Sick Leave due to COVID-19 illness?
Yes. If the employee has paid sick leave available, the employer must provide such leave and compensate the employee under California paid sick leave laws, including self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended. In addition, there may be other situations where an employee may exercise their right to take paid sick leave, or an employer may allow paid sick leave for preventative care such as recent exposure to COVID-19 or where the worker has traveled to a high risk area.
2. If an employee exhausts sick leave, can other paid leave be used?
Yes, if an employee does not qualify to use paid sick leave, or has exhausted sick leave, other leave may be available. If there is a vacation or paid time off policy, an employee may choose to take such leave and be compensated provided that the terms of the vacation or paid time off policy allows for leave in this circumstance.
3. Can an employer require a worker who is quarantined to exhaust paid sick leave?
No, it is the worker’s choice. If the worker decides to use paid sick leave, the employer can require they take a minimum of two hours of paid sick leave per day, but how much paid sick leave will be used per workday is up to the employee.
4. Can an employer require a worker to provide information about recent travel to countries considered to be high-risk for exposure to the coronavirus?
Yes. Employers can request that employees inform them if they are planning or have traveled to countries considered by the Centers for Disease Control and Prevention to be high-risk areas for exposure to the coronavirus. However, employees have a right to medical privacy, so the employer cannot inquire into areas of medical privacy.
5. Is an employee entitled to compensation for reporting to work and being sent home?
Yes. An employer must compensate such an employee for at least two hours or no more than four hours of reporting time pay. For example, a worker who reports to work for an eight-hour shift and only works for one hour must receive four hours of pay, one for the hour worked and three as reporting time pay so that the worker receives pay for at least half of the expected eight-hour shift. An exception to reporting time pay is where operations cannot commence or continued when recommended by civil authorities. See additional information on reporting time pay.
6. If an employee is exempt, are they entitled to a full week’s salary for work interruptions due to a shutdown of operations?
Yup; exempt employees must be paid their full weekly salary if they do not work the full week because the employer failed to make work available. An exempt employee who performs no work at all during a week may have their weekly salary reduced. If an exempt employee works any portion of a day, there can be no deduction from salary for a partial day absence for personal or medical reasons.
Federal regulations allow partial day deductions from an employee’s sick leave bank so that the employee is paid for their sick time by using their accrued sick leave. If an exempt employee has not yet accrued any sick leave or has exhausted all of their sick leave balance, there can be no salary deduction for a partial day absence.
7. What about retaliation against employees for using paid sick leave?
It would be wise not to retaliate against an employee for using paid sick leave. Given the evolving nature of this public health situation, if an employee chooses not to use available paid sick leave, or has none available, discuss with the employee any unpaid leave options that may be provided.
Employers, run your businesses based on facts, not panic, while exploring possible available leaves for your employees.