This article originally appeared in “Citations” magazine, a publication of the Ventura County Bar Association.
I completed this article May 14, 2021. With the speed that regulations and recommendations related to COVID-19 are changing, I hope at least part of this remains relevant by the time you read it.
After an unprecedented past 14 months, we are all anxious to get our professional and personal lives back to some semblance of normalcy. I will not presume to give you advice about your personal life, but I can offer some guidance on what your law practice may look like as we reopen.
The questions I am asked most often include: Should we mandate vaccines? Can we force employees to return to the office? Do we still need to make employees wear masks in the office? What benefits are employees eligible for if they develop COVID-19, are exposed to COVID-19, or are caring for someone with COVID-19?
Vaccine Mandates
California has expanded vaccine eligibility to those age twelve or older; however, not everyone is on board with getting immunized. Employers are approaching this in various ways: some are mandating vaccines in the workplace; some are offering incentives for employees who get vaccinated; and others aren’t concerned with who gets vaccinated.
The US Surgeon General has recommended that employers not mandate the vaccine. The Equal Employment Opportunity Commission (EEOC) says employers may require vaccines but specifies that enforcement may hinge on evaluation of “direct threat” issues.
If you implement a vaccine policy, you must provide exceptions for employees (1) who cannot be vaccinated due to an ADA-covered disability or other medical circumstance, or (2) who refuse a vaccine based on sincerely held religious beliefs, practices, or observances.
An employee may be excluded from the workplace for not being vaccinated if:
- They pose a direct threat – does the unvaccinated worker pose significant risk of substantial harm, based on reasonable medical judgment, which cannot be eliminated by a workplace accommodation?; or
- Vaccination is a safety qualification standard – requires an objective basis for the standard, historically tied to jobs protecting public safety. Standard must be job-related and consistent with business necessity.
The direct threat standard presents an extremely high bar. It will be critical to engage in an interactive process with the employee to determine whether a reasonable accommodation exists.
Rather than mandating vaccines, some employers are offering incentives to employees who get a vaccine. An EEOCproposed rule permitted only de minimis incentives, but the Biden administration withdrew the proposed rule. Even so, I recommend keeping incentives to a minimum, and consider offering alternative means to earn an incentive if the employee is unable to be vaccinated due to a disability or religious belief (e.g., watching a workplace COVID-19 safety video, or reviewing CDC literature on how to mitigate the spread of COVID-19 in the workplace).
I do not recommend mandatory vaccine policies for most workplaces. Current DFEH and EEOC guidance confirms employers may ask employees to provide proof of immunization, which I do endorse, especially in light of the varying standards for vaccinated employees.
Quarantine and Mask Requirements
On May 3, the California Department of Public Health issued guidance that fully vaccinated people do not need to quarantine if they are asymptomatic. A few days later, Cal/OSHA followed this lead and updated its COVID-19 Emergency Temporary Standards FAQs. (COVID-19 Emergency Temporary Standards Frequently Asked Questions (ca.gov).)
At this time, employees who are not fully vaccinated and who have been exposed to COVID-19 should quarantine for fourteen days. However, an exposed employee who is not fully vaccinated and who does not develop symptoms of COVID-19 may return to work ten days after the last known exposure. The employee does not need to have a negative test to return to work.
An exposed employee who has been fully vaccinated and who does not develop symptoms of COVID-19 does not need to quarantine.
On May 20, the California Occupational Safety & Health Standards Board will consider changes to the COVID-19 Emergency Temporary Standard Rules that, if adopted, will offer much-needed relief to employers. Under these proposals:
- Fully vaccinated or naturally immune workers (those who have tested positive for COVID-19 within the past 90 days) do not need to be excluded from work after a close contact so long as they remain symptom-free.
- Individuals who are actual COVID-19 cases, but are fully vaccinated before they become COVID-19 cases do not need to be excluded, so long as they remain symptom free and local public health rules permit them to remain at work.
- Fully vaccinated workers are exempt from masking if everyone in the same room is fully vaccinated and asymptomatic, or if the fully vaccinated employees are working outside and asymptomatic. Note that the definition of appropriate face covering is being revised to specify that it must be a medical, surgical, or two fabric layer mask, or respirator; therefore bandanas, scarfs, and single layer fabric masks will no longer be sufficient to meet the safety standard.
- Physical distancing requirements will expire July 31. Until then, this requirement is modified to require six feet of separation unless it is infeasible (as opposed to the current standard of impossible).
- Physical distancing requirements do not apply to locations where all employees are fully vaccinated.
California’s COVID-19 Supplemental Paid Sick Leave (SPSL)
California’s SPSL went into effect on March 29, retroactive to Jan 1. All employers with 26 or more employees are covered by SPSL. Employees are eligible for up to two weeks of paid leave if they are unable to work (or telework) because: (1) the employee is subject to a quarantine or isolation period related to COVID-19; (2) the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) the employee has an appointment to receive a COVID-19 vaccine; (4) the employee is experiencing symptoms related to a COVID-19 vaccine; (5) the employee is caring for a family member who is subject to quarantine or isolation order; or (6) the employee is caring for a child whose school or place of care is closed or otherwise unavailable due to COVID-19.
Full-time employees are eligible for up to 80 hours of SPSL. Part-time employees are eligible for the total number of hours they are normally scheduled to work over a two week period. Pay is capped at $511 per day and an aggregate of $5,110.
Employers are required to provide notice to employees of their right to SPSL. California’s Department of Industrial Relations (DIR) has published a poster explaining the law, which should be displayed in a conspicuous place in the workplace and sent electronically to employees who are working remotely. (2021 COVID-19 Supplemental Paid Sick Leave (ca.gov).)
An employee’s SPSL must be reflected on their paycheck stubs. Paid leave under the SPSL is in addition to any other paid sick leave provided by the employer; therefore, it must be set forth separately from regular paid sick leave.
The DIR released a detailed FAQ explaining the SPSL and the various obligations imposed on employers. (2021 COVID-19 Supplemental Paid Sick Leave FAQs (ca.gov).) This is a great resource for employers handling COVID-19 sick pay issues.
Federal Emergency Paid Sick Leave and Expanded Family and Medical Leave
One of the first COVID-19 federal bills passed last year, the Families First Coronavirus Response Act (FFCRA), took effect April 1 for private employers with fewer than 500 employees, creating both the Emergency Family and Medical Leave program (EFMLA) and emergency paid sick leave (EPSL).
The mandate to provide these benefits expired on Dec. 31, 2020; however, the second stimulus bill, called the Heroes Act, allowed employers to continue voluntarily providing EPSL and EFMLA that had not been used in 2020, and to receive the tax benefit through March 31.
On March 11, President Biden signed the $1.9 trillion American Rescue Plan Act which, among other things, allows employers to continue to voluntarily provide EPSL and EFMLA, and extends their ability to claim the tax credits through Sept. 30.
As of April 1, employees are eligible for either EFMLA or EPSL if (1) the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) the employee is advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; (3) the employee is experiencing COVID-19 symptoms and seeking a medical diagnosis; (4) the employee is obtaining a vaccination related to COVID-19; (5) the employee is recovering from an injury, disability, illness, or condition related to a COVID-19 vaccination; (6) the employee is seeking or awaiting the results of a diagnostic test or medical diagnosis because they were exposed to COVID-19 or their employer has requested such a test or diagnosis; (7) the employee is caring for an individual who is subject to an order as described in (1) or has been advised as described in (2) above; (8) the employee is caring for their son or daughter because the child’s school or childcare is closed, or the childcare provider is unavailable due to COVID-19 precautions; or (9) the employee is experiencing any other substantially similar condition as defined by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
A. Emergency Family and Medical Leave (EFMLA)
Employees who have worked for the employer for at least 30 calendar days may be eligible for up to 12 weeks of paid FMLA leave if they cannot work (or telework) for any of the foregoing those nine reasons. Employees must be paid two-thirds of their regular rate of pay each day of leave taken, based on the number of hours the employee would otherwise be regularly scheduled to work, up to a cap of $200 per day and an aggregate of $12,000.
Employees are to be returned to the same or equivalent position at the conclusion of the leave. If no such position exists, the employer must make “reasonable efforts” to contact and reinstate the employee during the year following the conclusion of the leave period.
B. Emergency Paid Sick Leave (EPSL)
Full-time employees are entitled to 80-hours (two weeks) of emergency paid sick leave. Part-time employees are entitled to a proportional amount of EPSL depending upon the average number of hours they typically work in a two-week period.
EPSL benefits are capped at $511 per day for the worker’s own care and $200 per day when the employee is taking care of someone else.
Employees who already used their EPSL allotment in 2020 are provided another 80 hours as long as the employer voluntarily grants its use.
Leave provided to an employee after Jan.1 pursuant to EPSL will count against the employee’s SPSL (see above) if the leave is available for the same reasons and provides pay at the same rate as SPSL. For example, a full-time employee who utilized ten hours of EPSL earlier this year due to their own COVID-19 illness will have ten fewer hours available to them for SPSL leave. However, if the same employee utilized their EPSL to care for someone else and therefore was paid at the lower rate, then that leave does not count towards their available SPSL.
It is important to remember that employers are no longer required to provide either the EFMLA or EPSL benefits; however, if they do, they will receive a payroll tax credit for the paid leave or EPSL provided to eligible employees. Many of my clients have elected to voluntarily continue the EPSL, but not the EFMLA. Whatever you decide to do, it should be subject to a written policy which is distributed to all employees.
Telecommuting
A year ago, COVID-19 caused law firms to quickly move out of their offices. We were forced to embrace remote work for attorneys and staff, and the expectation is that much of that will continue. A recent survey of national law firms reflects that most don’t expect to fully return to the office until sometime in the Fall, and almost all anticipate that some degree of work from home will continue.
There are employees who love working from home, and others who can’t wait to get back to the office. Law firms have an opportunity to improve firm morale by surveying employees to determine their preferences and accommodating them where practical.
If you are going to require employees to return to the office, be sure that you are implementing all of the necessary health and safety protocols. Many employees began working remotely last Spring without prior warning or training, and without clear guidelines about expectations. If employees are going to remain remote, or work some sort of hybrid schedule, then it is important to clarify the policies and procedures they are expected to follow.