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COVID-19 News & Resources for Farm Employers

Bryan Little, Farm Employers Labor Service

UPDATE: December 4, 2020

COVID-19 Updates:

  • UPDATE: New "Regional Stay At Home Order:"  On December 3, California's Acting Public Health director issued a new public health order prospectively rolling back business activities and imposing more stringent stay-at-home requirements on a regional basis (for this purpose, the state will be divided into five regions: Northern California, Bay Area, Greater Sacramento, San Joaquin Valley, and Southern California) if available intensive care unit (ICU) bed space in a given region falls below 15% of capacity.  Various activities like barber shops, bars and wineries will be shuttered entirely.  Restaurants may offer take-out or delivery service only; retailers will be required to operate at no more than 20% capacity.  Critical infrastructure activity is permitted to continue if a remote work option is unavailable; agriculture and food production has been considered critical infrastructure since the beginning of the pandemic. Agricultural employers may want to furnish their employees with Farm Employers Labor Service's Farm Employee Critical Infrastructure Employee Letter (English & Spanish), which will allow the bearer to establish employment by a critical infrastructure employer (food production).
  • Cal/OSHA Publishes COVID-19 Employer Compliance Information: On December 1, Cal/OSHA published on it's website Frequently-Asked Questions (FAQ) about the COVID-19 Emergency Temporary Standard (ETS) described below and in Cal/OSHA's New Emergency Standard on COVID-19 Prevention on FELS webpage; the FAQ includes a model COVID-19 Prevention Policy as required by the ETS (though the agency says it will be acceptable to integrate your COVID-19 response plans into your IIPP); and a one-page summary of the ETS.  FELS urges employers to review the standard in depth, as it is complex and does not lend itself to summarization.  In the FAQ, the Agency indicates it will "...consider an employer’s good faith efforts in working towards compliance, but some aspects, such as eliminating hazards and implementing testing requirements during an outbreak, are essential."  The Agency also indicates it's intent to convene a stakeholders meeting in December to "... explain the rule, answer questions and give interested parties an opportunity to provide feedback on the rule."  Further, "an advisory committee meeting will be scheduled soon after that. The Occupational Safety and Health Standards Board (OSHSB) has formally requested that Cal/OSHA report the results of this advisory process to the Board within four months." 
  • Cal/OSHA COVID-19 Emergency Temporary Standard (ETS) Effective 11/30/20: On November 30, 2020 the Office of Administrative Law approved the COVID-19 Emergency Temporary Standard (ETS) requiring new employer protocols for employers to implement to protect employees against workplace spread of COVID-19 which had been approved by the Cal/OSHA Standards Board on November 19.  The OAL's truncated 10 day review of the ETS authorized by the Administrative Procedures Act means the ETS became effective upon completion of OAL's review when the ETS will be filed with the Secretary of State.  
  • COVID-19 California Curfew Order: On November 19, 2020, Acting State Public Health Officer Erica S. Pan issued Limited Stay at Home Order,” which has been characterized as a “curfew.”  The order institutes a 10 PM to 5 AM limit on interactions outside one’s own immediate household except for activities associated with critical infrastructure businesses.  The intent of the order appears to be to limit interactions between individuals who do not share households in an effort to limit the November COVID-19 surge.  
  • Revised CDC Critical Infrastructure Worker Intergration Guidance: On November 16, 2020, CDC released revised "COVID-19 Critical Insfrastructure Response Planning" guidance in response to the COVID-19 "November surge." In that revised guidance, CDC "clarified that reintegrating exposed critical infrastructure workers who are not experiencing any symptoms and have not tested positive back into onsite operations should be used as a last resort and only in limited circumstances, such as when cessation of operation of a facility may cause serious harm or danger to public health or safety."  This seems to limit the applicability of other guidance, like that issued in California's "COVID-19 Employer Playbook," which envisions flexibility for local health departments to allow essential infrastructure workers to return to work if they have tested negative and are asymptomatic prior to 14 days since the last known close contact with someone with COVID-19.
  • Revised CDPH Face Covering Guidance: On November 16, 2020, the California Department of Public Health (CDPH) issued revised guidance for the use of face coverings, essentially mandating use of face coverings at all times when outside the home except when alone on a vehicle or in the company of members of that person's own household; when working alone in an office or other room, when eating or drinking while maintaining six feet of distance, outdoors at greater than 6 feet distance, or if that person's job requires use of respiratory protection.  Face shields may not be used alone as a substitute for a face covering. 
  • NEW CDC Definition of COVID-19 "Close Contact:" On October 21, the U.S. Centers for Disease Control (CDC) published a revision of their definition of "close contact;" previously, CDC's guidance considered close contact to be any specific incident of contact with an infected person of 15 minutes or longer in duration.  In their new guidance, CDC now considers close contact to be a cumulative total of 15 minutes or more in a 24 hour period beginning two days prior to illness onset or two days before the infected person submitted to a test.  This will require employers to assess whether employees may have been exposed to an infected person for a cumulative total of 15 minutes or more in a 24 hour period even if no particular incident lasts for 15 minutes or more.  The result could be that many more employees may need to be isolated for having been exposed to close contact to an infected person than under CDC's prior guidance.  Employer OSHA defense firm Conn Maciel Carey has published this client alert with more details.  
  • Oregon COVID-19 OSHA Standard Coming: Oregon OSHA is pushing to adopt an emergency COVID-19 regulation by the late October or early November 2020, to be followed up with a permanent infectious disease regulation with a goal of a final permanent regulation by March 2021.  You can read more about this in Oregon OSHA Moves Forward with a COVID-19 Temporary Standard on Jackson Lewis’ OSHA Law Blog.  You can also find compliance resources for Oregon agricultural employers at this page on Oregon Farm Bureau’s website.  Cal/OSHA is following a similar path; Cal/OSHA Standards Board has directed its staff and Cal/OSHA staff to write a temporary COVID-19 standard for consideration at the Board’s November meeting.
  • Employer Considerations for COVID-19 Vaccines:  Seyfarth Shaw's recent Legal Update, Top Ten Considerations for Employers When it Comes to Potential COVID-19 Vaccine Programs raises interesting questions and provides some interesting guidance for employers when COVID-19 vaccines become available; should you make vaccination mandatory for employers to be in the workplace? In an age when virtually everything has become political, how do you cut through the political noise and figure out what you need to do to protect your employees?  Does your approach to this question open you up to union organizing? You can read more here.
  • ICYMI (In Case You Missed It): FELS WEBINAR: Sweeping Workers Comp Changes for California Employers: Prepare or Pay:  Taylor Arnold and Keith Teague of the employers' workers comp firm Hanna Brophy explained the massive changes brought by SB 1159 (Hill), which created a new "outbreak-triggered" rebuttable presumption of work-relatedness for COVID-19 infections, imposing new costs and compliance mandates for California employers. You can view the presentation slides here.  You can view a video of the webinar here.
  • AB 685 COVID-19 Notices and Cal/OSHA Enforcement: Governor Newsom recently signed Assembly Bill 685 (Reyes) which expands the reporting and notification requirements for employers and increases CAL/OSHA’s authority relating to COVID-19.  The new law establishes requirements for employers to notify employees and any relevant unions about potential exposure to COVID-19 in the workplace as well as to report a COVID-19 “outbreak” to local health authorities.  These new requirements are effective beginning on January 1, 2021 and are slated to continue through January 1, 2023.  In order to comply with these new requirements, employers will likely need to develop new policies and procedures. You can read more here.
  • AB 1867 Supplemental Paid Sick Leave: On September 9, 2020, California Governor Gavin Newsom signed AB 1867 into law creating two new Labor Code sections: 248 (food service workers) and 248.1(covered workers), and also amending Labor Code section 248.5 (enforcement procedures). The provisions are effective immediately, and require all private businesses with 500 or more employees nationwide (as well as certain health care providers and emergency responders) to provide their California employees with COVID-19 related supplemental paid sick leave no later than September 19, 2020.  FELS Group Legal Service Plan partner firm Barsamian & Moody provide analysis. FELS Newsletter subscribers can read more here.
  • DOL Issues Revised FFCRA Regs: In response to an early August ruling from a federal judge in a lawsuit brought by the state government of New York, the U.S. Department of Labor issued revised regulations implementing the Families First Coronavirus Response Act (FFCRA) emergency paid sick leave and expanded Family and Medical Leave Act (FMLA) leave.  That judge’s ruling found certain provisions of DOL’s April FFCRA regulations invalid because it unlawfully denied leave to certain employees and exceeded the statutory authority granted to the Secretary of Labor to implement FFCRA emergency paid sick leave and expanded Family and Medical Leave.  DOL's revised regulations essentially stand pat on it's original positions that leave can only be taken when work would otherwise be available and that intermittent leave can be taken only with the employers consent.  FELS Newsletter subscribers can read more here.
  • The Division of Labor Standards Enforcement (DLSE) of the Department of Industrial Relations (DIR) has issued a letter to farm labor contractors (FLCs) licensed by the State of California reminding them of legal requirements to comply with various COVID-19-related state and federal paid sick leave mandates, Cal/OSHA and the California Department of Public Health (CDPH) and retaliation protections, and demanding information about their sick leave compliance within 10 days during a period of heavy workloads for FLCs. Be advised that Labor Commissioner Lilia Garcia-Brower's demand letter calls for recipients to certify compliance with paid sick leave requirements and to provide the names of "all growers with whom you contracted in 2020, currently contract, or plan to contract in the near future."  While FLC's seeking state licensure must already provide this information, this renewed demand may be an indication of interesting in joint employment enforcement.
  • Implementation and Compliance with Presidential Memorandum Deferring Employee Social Security Tax Withholding: FELS Group Legal Service Plan partner firm Barsamian & Moody has provided employer guidance for deferral of Social Security tax witholding permitted by President Trump's Aug. 8 Executive Order (below).
  •  ICYMI (In Case You Missed It): FELS WEBINAR: New California Family Rights Act Family Medical Leave Requirements for Small Employers: featuring Seth Mehrten, Barsamian & Moody.  The governor has signed SB 1383, expanding coverage of California's Family and Medical Rights Act to employers of as few as five employees; until now, CFRA covered only employees of 50 or more.  What do small employers need to know about CFRA? You can view a recording of Seth's presentation here.  B&M is the partner with Farm Employers Labor Service providing legal assistance for FELS Newsletter subscribers and clients.
  • ICYMI (In Case You Missed It): FELS WEBINAR:"Employee COVID-19 Infections: What Does Cal/OSHA Want me to Record?" What do they Want me to Report?"  The Conn Maciel team's presentation has been posted to FELS website.  You can view that presentation here.  
  • ICYMI (In Case You Missed It): FELS WEBINAR: "CalSavers: 12 Days to the Sign-Up Deadline! What's CalSavers? What are my Alternatives?"  State law requires all businesses with 5 or more employees to facilitate CalSavers – a state-sponsored payroll deduction individual retirement account (IRA) – if they do not sponsor a qualified retirement plan. Registration deadlines vary based on employer size. The deadline for eligible employers with more than 100 employees is Sept 30, 2020. Seth Marten of Barsamian & Moody, Paul Yossem of Nationwide, and Jonathan Herrera of CalSavers will help you understand CalSavers and what alternatives are available to employers.  You can view Jonathan Herrera's presentation here.  
  • The U.S. Department of Labor (USDOL) has issued guidance about Families First Coronavirus Response Act (FFCRA) expanded Family and Medical Leave (eFMLA) employee eligibility in situations where their childrens' schools may not be open or may be only partially open.  In short, eFMLA leave (and attendant paid sick leave) is available if school is unavailable and the parent needs leave to acutally care for that child and no other suitable person is available to do so.  If school is offering remote learning options alongside in-person learning, a parent would not be eligible if they elect not to use in-person learning, or on days when in-person school is available.
  • The federal Food and Drug Administration (FDA) and the federal Occupational Safety and Health Administration (OSHA) have developed a COVID-19 checklist for employers who grow, harvest, pack, manufacture, process or hold human and animal food regulated by FDA, and covers many topics related to COVID-19 safety, including employee health screenings; configuring operations to accommodate social distancing; use of engineering controls, such as physical barriers and adequate ventilation; communication and training; signage; coordination with public health officials; exposure scenarios and return-to-work criteria; hand hygiene and respiratory etiquette; flexible sick leave policies; cleaning/disinfecting; PPE and face coverings; and others. 
  • IIPP COVID-19 Addendum: FELS has created an addendum for your Injury and Illness Prevention Program (IIPP) (Spanishto describe the actions Cal/OSHA expect employers to undertake to fully implement their IIPP in the context of COVID-19.  An alternative addendum is available in English and Spanish.
  • ICYMI (In Case You Missed It): FELS Webinar: FELS Aug. 18 Webinar, "You Have an Employee with COVID-19; Now What," presented by FELS Group Legal Service Program partner firm associate Seth Mehrten was a huge success, attended by nearly 280 participants; if you missed it, video of Seth's presentation and Seth's PowerPoint presentation is available at this link.
  • President Trump issued two Executive Orders on Aug. 8 related to COVID-19 impacting employers. The first EO will defer payment of the employee portion of certain payroll taxes through the end of the year. This deferral is available to employees who earn less than $100,000 a year. The second EO extends unemployment compensation, similar to unemployment provisions in the CARES Act. In the CARES Act, the federal government provided an additional $600 a week in pandemic unemployment assistance. This unemployment assistance recently expired. The EO authorizes financial assistance for lost wages in conjunction with state unemployment insurance systems. Unlike the pandemic unemployment assistance provisions in the CARES Act, the memorandum authorizes an additional $400 payment per week.
  • Governor Gavin Newsom on July 24 announced “New Supports for California Workers,” including “a new program, Housing for the Harvest, provides safe, temporary isolation spaces for agricultural and farmworkers who test positive or were exposed to the virus, which limits the risk of spreading COVID-19 to their coworkers or households. This program will operate in partnership with counties and local partners in the Central Valley, Central Coast, and Imperial Valley – the regions with the highest number of agricultural workers;” a “public awareness…campaign (that) will expand its reach to employers, to workers and to their families to inform them of ways they can break the cycle of spread and reduce their risk for COVID-19 at work, at home, and in their community;”  “…work with the Legislature to build on previous executive action and advance worker protections. Expanded paid sick leave will provide workers financial security so they are able to stay home when sick. Similarly, workers’ compensation access helps ensure that front-line workers can quarantine and stay home from work when ill;” “…a new Employer Playbook released today will guide them on how to provide a clean environment for workers and customers to reduce risk;” and “…expedited enforcement authority and advanced reporting of health and safety hazards at work will improve enforcement outcomes. Requiring employers to report outbreaks to their local health departments will help track county transmission. Governor Newsom will work with the Legislature to establish this authority.”

 

COVID-19 Resources for Farm Employers:

Coronavirus Aid, Relief, and Economic Security (CARES) Act Paycheck Protection Program (PPP) Resources:

  • Paycheck Protection Program (PPP) Extension: On July 4, President Trump signed a bill that will extend the application period for the Small Business Administration’s (SBA) Paycheck Protection Program through August 8, 2020.  The program, originally included in the CARES Act, was originally set to expire June 30, 2020. This extension will allow farmers and ranchers additional time to consult with their accountant, tax preparer and/or financial advisor(s) about the PPP application to ensure the proper documentation has been completed and reviewed.  The SBA has reported that over $130 billion remains unexpended in the program. 

    Additionally, the SBA has issued an interim final rule that incorporates the loan forgiveness changes of the Paycheck Protection Flexibility Act. The interim final rule: reduces the minimum amount of loan forgiveness that comes from payroll costs from 75% to 60%; extends the forgiveness period to include costs incurred over 24 weeks after a loan is issued or through Dec. 31, whichever comes first. Businesses that received a loan before the measure is enacted could keep the current eight-week period; establishes a minimum loan maturity period of five years following an application for loan forgiveness, instead of the current two-year deadline set by the SBA. That provision would apply to PPP loans issued after the measure is enacted, though borrowers and lenders could agree to extend current loans; extends the period in which loans can be forgiven if businesses restore staffing or salary levels that were previously reduced from June 30 to Dec. 31. The provision would apply to worker and wage reductions made from Feb. 15 through 30 days after enactment of the CARES Act (signed into law March 27); maintains forgiveness amounts for companies that document their inability to rehire workers employed as of Feb. 15, and their inability to find similarly qualified workers by the end of the year. Companies would be covered separately if they show that they couldn’t resume business levels from before Feb. 15 because they were following federal requirements for sanitization or social distancing; allows borrowers to defer principal and interest payments on PPP loans until the SBA compensates lenders for any forgiven amounts, instead of the current six-month deferral period. Borrowers that don’t apply for forgiveness would be given at least 10 months after the program expires to start making payments.  The SBA also has also released a new EZ PPP loan forgiveness application form.  The Flexibility Act requires SBA to create a more “borrower-friendly” application form.  SBA and Treasury have also released a revised full PPP loan forgiveness application form. Again, we encourage members to consult with their accountant, tax preparer and/or financial advisor about the PPP application and loan forgiveness process to ensure all the proper documentation has been completed and reviewed.  Additionally, specific application questions can be submitted directly to SBA via the SBA Customer Service Center by calling 1-800-659-2955 or emailing This email address is being protected from spambots. You need JavaScript enabled to view it. 
  • The U.S. Small Business Administration has announced that agricultural enterprises can begin submitting applications for the Economic Injury Disaster Loan Program (EIDL).  These applications will be accepted on a limited basis and on a first-come-first-served basis.  Eligible agricultural businesses may apply for the Loan Advance at this link.  For more information, see the SBA press release.
  • U.S. Small Business Administration and U.S. Dept. of Treasury have released additional information and guidance useful to agricultural employers seeking to use the Paycheck Protection Program (PPP), in particular an Interim Final Rule allowing seasonal agricultural employers to use an alternative payroll period to calculate their payroll needs, guidance on calculating loan amounts when applying for PPP, and new Frequently-Asked-Questions on PPP. 
  • California Farm Bureau (CFBF): PAYCHECK PROTECTION PROGRAM: President Trump has signed H.R. 266, the Paycheck Protection Program and Health Care Enhancement Act, which provided $320 billion in additional funding for the Paycheck Protection Act (PPP). The Small Business Administration (SBA) and the United States Treasury have announced that the SBA will resume accepting PPP loan applications on Monday, April 27 at 10:30 AM EDT from approved lenders on behalf of any eligible borrower.  They have indicated that the start time will help ensure that SBA has properly coded the system to account for changes made by the legislation. This program is first come, first serve and funding is expected to run out quickly.  Interested applicants are advised to consult with their accountant, tax preparer and/or financial advisor(s) and apply immediately to have optimal opportunity to access PPP funding. See Frequently-Asked-Questions. ECONOMIC INJURY DISASTER LOAN program (EIDL): The EIDL Program offers up to $2 million in assistance loans with a 3.75% rate. These loans may be used to pay fixed debts, payroll, accounts payable and other bills that can’t be paid because of the disaster’s impact. In response to the Coronavirus (COVID-19) pandemic, small business owners are eligible to apply for an EIDL advance of up to $10,000. This advance will provide economic relief to businesses that are currently experiencing a temporary loss of revenue. Funds will be made available within three days of a successful application. The loan advance will not have to be repaid. This is the first time agriculture is eligible to apply. More information can be found HERE.
  • CFBF: SBA Interim Final Rule (IFR) for sole proprietors applying for Paycheck Protection Program assistance;memorandum from Erin Huston, CFBF Federal Policy Division
  • CFBF: Paycheck Protection Program FAQs
  • CFBF: Small Business Administration - Paycheck Protection Programinformation from California Farm Bureau confirming that agricultural businesses are eligible to participate, contrary to earlier information. 
  • U.S. Dept. of the Treasury: Assistance for Small Business: overview of resources for small businesses seeking to access and use PPP loans
  • Treasury Dept.: One-page overview of PPP; PPP Overview
  • Treasury Dept.: CARES Act Assistance for Small Business: overview of resources for small businesses seeking to access and use PPP loans; One-page overview of PPP; PPP Overview
  • Internal Revenue Service: IRS has issued revised guidance has issued revised guidance (superceding prior guidance) concerning tax credits available to reimburse employers for the cost of providing FFCRA-mandated leaves.  FAQ #6 and #10 appear to conflict with accompanying summary material on the webpage; please be advised further clarication may be forthcoming.  FAQ#9 explains how to calcuate the cost for which you can claim a credit for health insurance benefits.
  • Barsamian & Moody: Basics of the CARES Act
  • California Small Business Development Centers (SBDC): Guide to COVID-19 Loans and Forms: information for applying for small business relief and continuity lending from the U.S. Small Business Administration (U.S. SBA)
  • SBDC: COVID-19 Survival Guide:  SBA Economic Injury Disaster Loans, EDD for Businesses and Employees, Business Interruption Insurance (courtesy Ofc. of Rep. Tom McClintock) 
  • U.S. Senate Committee on Small Business & Entrepreneurship: Paycheck Protection Program FAQs for Small Business (courtesy Ofc. of Rep. Tom McClintock)
  • Senate Small Business Committee: The Small Business Owner's Guide to the CARES Act (courtesy Ofc. of Rep. Tom McClintock)

 

Occupational Safety & Health Issues:

  • FELS has learned that Cal/OSHA has shifted its enforcement emphasis in recent days from education and outreach to citations of violations of the Injury and Illness Prevention Program (IIPP) and Heat Illness Prevention Program (HIPP) rules.  Cal/OSHA has asserted that compliance with the IIPP in the context of the COVID-19 pandemic necessarily entails implementation of their Safety and Health Guidance: COVID-19 Infection Prevention for Agricultural Employers and Employees (updated July 22, 2020) (Spanish) and their COVID-19 General Checklist for Agricultural Employers (Spanish) and COVID-19 Daily Checklist for Agricultural Employers (Spanish).  The agency is further asserting that failure to furnish sufficient shade to allow for six-foot social distancing will be cited as a violation of both the IIPP and HIPP regulations.  FELS strongly encourages agricultural employers familiarize themselves with these guidance documents and implement to the extent practical in their operations.  
  • The National Milk Producers Federation has published Coronavirus (COVID-19) Prevention and Management Dairy Farmer Handbook (Spanish) to provide dairy producers with useful information on dealing with COVID-19 and preventing workplace hazards associated with it and Recommended Protocols for Dairy Farms When an Employee Tests Positive for COVID-19 along with an informational poster created by Alltech, What you Need to Know about Coronavirus (COVID-19) on Your Dairy (Spanish). 
  • Latest guidance from Cal/OSHA, Face Coverings, Masks & Respirators, asserts that employers are required to provide face coverings for employees' use or reimburse employees for reasonable costs of obtaining face coverings.  The Department of Industrial Relations (DIR) released this Media Advisory on July 16, Cal/OSHA Urges Employers to Follow the State’s Guidance on Protecting Workers from COVID-19advising employers that they will be conducting worksite enforcement of COVID-19 employee protections.
  • U.S. Centers for Disease Control (CDC) has released updated SARS-CoV-2 Testing Strategy: Considerations for Non-Healthcare Workplaces providing employers with advice as to when it might be appropriate to administer COVID-19 testing in an employment context for individuals who may have been exposed but are asymptomatic, determining when it may be safe to allow someone recuperating or who has tested positive but my not have experience illness, or even testing employees with no known exposure.
  • CDC has also substantially changed its guidance as to whether testing is required to permit an employee to discontinue home isolation, instead shifting to a symptom-based criteria allowing discontinuation after at least 24 hours have passed since the last fever without use of fever-reducing medication and allowing discontinuation of home isolation 10 days after a positive test for people who test positive but never suffer symptoms.
  • UPDATE: the COVID-19 Employer Playbook issued by the California Department of Public Health (CDPH) on July 24 was updated on July 28 to require employers to contact the local health department in any jurisdiction where a COVID-19 employee resides when there is an outbreak in a workplace. An outbreak is defined as three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.
  • The U.S. Centers for Disease Control (CDC) has broadened guidance on who may be at risk for severe illness due to COVID-19 because of age and underlying medical conditions.  According to the new guidance, risk increases with age (particularly after age 65) but younger people and people with underlying medical conditions can be at risk also.  Such conditions include common health conditions like pregnancy, obesity, Type 2 diabetes, and hypertension (high blood pressure).  The problem for employers posed by CDC’s new guidance is that many more people and their medical providers may now believe they are at greater COVID-19 risk that previously thought.  CDC generally recommend that people at higher rise limit social interaction and take preventative precautions.  Employers may see increasing requests for various types of paid and unpaid leaves and accommodations.  To the extent that employers may have either written or unwritten policies limiting leaves and accommodations to employees over age 65, those policies should be reconsidered.  In general, employers should always conduct individualized assessments of employees’ requests for reasonable accommodations, and those assessments should consider this new CDC guidance and recommendations from an employee’s health care provider.   
  • Terpstra Henderson has published a handy 12-page guideline covering COVID-19-related issues like confidentiality and discrimination, COVID-19 testing and working or teleworking, notices to provide to employees in the event of a COVID-19 case, operations if an infection or exposure occurs, return-to-work issues, worker health screening, reporting obligations, payment obligations, and CDPH recommendations for handing employees in various situations related to whether they been tested and tested positive or negative, are symptomatic or not, or have been exposed to someone who might be symptomatic or not or have been tested or not or tested posibive or not.  
  • The California Department of Public Health (CDPH) has published guidance for employers dealing with COVID-19 workplace outbreaks.  Among other recommendations, CDPH directs employers to be prepared for a possible workplace outbreak, be prepared to share information about employees and related matters with the local jurisdication health department, understand requirements for reporting work-related cases to Cal/OSHA, identification of any additional employee cases and close workplace contacts of those employees, notification and management of employees, and provides guidance to determine when an employee should return to work.  
  • Gov. Gavin Newsom, the California Manufacturers and Technology Association, Autodesk, and Intel have partnered to create "Safely Making California" to fill critical safety supply gaps for California employers. 
  • California Department of Public Health (CDPH) has issued broad new requirements for use of face masks virtually everywhere outside of the home.  You can read CDPH's description of the new face mask requirements here, and CDPH's updated guidance on use of masks here. In workplaces, the new rules require employees to wear face masks when they are in “high-risk situations” such as when:
    • Engaged in work, whether at the workplace or performing work off-site, when:
    • Interacting in-person with any member of the public;
    • Working in any space visited by members of the public, regardless of whether anyone from the public is present at the time;
    • Working in any space where food is prepared or packaged for sale or distribution to others;
    • Working in or walking through common areas, such as hallways, stairways, elevators, and parking facilities;
    • In any room or enclosed area where other people (except for members of the person’s own household or residence) are present when unable to physically distance.
  • The federal Equal Employment Opportunity Commission (EEOC) has issued revised guidance (see question A.7.) to the effect employers may not require employees to submit a negative COVID-19 antibody test to determine whether the employee may return to work.  According to EEOC, this constitutes a medical examination under the Americans with Disabilities Act (ADA) that is impermissible because it is not "job related and consistent with business neccessity."  Virus tests used to detect current infection are permissible because in infected employee poses a direct threat to the health of all employees.
  • California Department of Food and Agriculture is providing biosecurity guidelines for agencies conducting the COVID-19 workplace safety push when they visit animal agriculture facilities.  Issued by state veterinarian Annette Jones, the guidance instructs California state employees who are likely to be unfamiliar with biosecurity issues how to avoid cross-contamination issues.  Operators of animal ag facilities should be aware that state employees conducting enforcement activities should be familiar with these guidelines.
  • Terpstra Henderson has published a handy 12-page guideline covering COVID-19-related issues like confidentiality and discrimination, COVID-19 testing and working or teleworking, notices to provide to employees in the event of a COVID-19 case, operations if an infection or exposure occurs, return-to-work issues, worker health screening, reporting obligations, payment obligations, and CDPH recommendations for handing employees in various situations related to whether they been tested and tested positive or negative, are symptomatic or not, or have been exposed to someone who might be symptomatic or not or have been tested or not or tested posibive or not. 
  • The California Department of Public Health (CDPH) has published guidance for employers dealing with COVID-19 workplace outbreaks.  Among other recommendations, CDPH directs employers to be prepared for a possible workplace outbreak, be prepared to share information about employees and related matters with the local jurisdication health department, understand requirements for reporting work-related cases to Cal/OSHA, identification of any additional employee cases and close workplace contacts of those employees, notification and management of employees, and provides guidance to determine when an employee should return to work.  
  • Gov. Gavin Newsom, the California Manufacturers and Technology Association, Autodesk, and Intel have partnered to create "Safely Making California" to fill critical safety supply gaps for California employers.  
  • California Department of Public Health (CDPH) has issued broad new requirements for use of face masks virtually everywhere outside of the home.  You can read CDPH's description of the new face mask requirements here, and CDPH's updated guidance on use of masks here. In workplaces, the new rules require employees to wear face masks when they are in “high-risk situations” such as when:
    • Engaged in work, whether at the workplace or performing work off-site, when:
    • Interacting in-person with any member of the public;
    • Working in any space visited by members of the public, regardless of whether anyone from the public is present at the time;
    • Working in any space where food is prepared or packaged for sale or distribution to others;
    • Working in or walking through common areas, such as hallways, stairways, elevators, and parking facilities;
    • In any room or enclosed area where other people (except for members of the person’s own household or residence) are present when unable to physically distance.
  • The federal Equal Employment Opportunity Commission (EEOC) has issued revised guidance (see question A.7.) to the effect employers may not require employees to submit a negative COVID-19 antibody test to determine whether the employee may return to work.  According to EEOC, this constitutes a medical examination under the Americans with Disabilities Act (ADA) that is impermissible because it is not "job related and consistent with business neccessity."  Virus tests used to detect current infection are permissible because in infected employee poses a direct threat to the health of all employees.
  • Western Center for Agricultural Safety and Health, UC Davis: new resources for agricultural employes: Screening Workers to Prevent COVID-19 in the Workplace; What to do if an Employee Has COVID-19; Disinfection and Sanitation for COVID-19 at the Worksite; Personal Protective Equipment in the Time of COVID-19; Coronavirus/COVID-19 Agricultural Employer Training Guide
  • The federal Occupational Safety & Health Administration (OSHA) has issued guidance on use of face coverings in the workplace.  The agency reiterates it's view that such face coverings, whether cloth masks, bandanas, "surgical masks" (which may or may not have been cleared by the Food and Drug Administration for hospital use) are not personal protective equipment (PPE) and as such employers are not obliged to furnish, maintain, or pay for them.  A respirator issued by an employer as PPE must, or course, be used in compliance with respirator protection standards. 
  • The U.S. Centers for Disease Control (CDC) has issued guidance describing different testing strategy options for exposed employees when employers determine testing is needed to help support existing disease control measures. As part of the Guidance, CDC issued a decision tree to assist with determining optional testing strategies. CDC specifically notes that outbreaks of illness among workers in food-producing facilities and surrounding communities have raised “unique questions that identified the need for testing” to supplement existing CDC recommendations. 
  • CDC has created a 16-page "Agricultural Employer Checklist" for creation of a COVID-19 control plan.  According to CDC: "Farm owners and operators can prevent and slow the spread of COVID-19. Owners/operators should develop a COVID-19 assessment and control plan to protect themselves and farmworkers, in accordance with the CDC Interim Business Guidance for Businesses and Employees and General Business Frequently Asked Questions. State and local health departmentsexternal icon may also provide resources to aid in the development of these plans."
  • U.S. CDC and the U.S. Department of Labor have jointly issued Agriculture Workers and Employers: Interim Guidance from CDC and the U.S. Department of Labor, non-enforceable guidelines that largely track with guideance from Cal/OSHA, California Dept. of Public Health, and county public health officers on issues like maintaining social distancing and grouping workers throughout a workday to minimize opportunities for transmission.
  • Cal/OSHA has released new FAQ on how employers are expected to determine recordability (as a workplace illness or injury) and reportability of COVID-19 cases.  In those FAQ, the agency notes: "A work-related exposure in the work environment would include interaction with people known to be infected with SARS-CoV-2 (the virus that causes COVID-19); working in the same area where people known to have been carrying SARS-CoV-2 had been; or sharing tools, materials or vehicles with persons known to have been carrying SARS-CoV-2."
  • Cal/OSHA has issued a General Checklist (Spanish) (covering broad topics of concern to agricultural employers) and a Daily Checklist (Spanish) (designed to illuminate issues that will arise from day-to-day in the workplace) to their website.  At the same location, you'll find updated Interim General Guidelines on Protecting Workers from COVID-19; in the latest iteration of this guidance, the agency highlights, "...employers are required to determine if COVID-19 infection is a hazard in their workplace. If it is a workplace hazard, then employers must implement infection control measures, including applicable and relevant recommendations from the Centers for Disease Control and Prevention (CDC)...for most California workplaces, adopting changes to their IIPP is mandatory since COVID-19 is widespread in the community."  In particular, Cal/OSHA names CDC guidance documents, Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), and Coronavirus Disease 2019 (COVID-19): How to Protect Yourself & Others.
  • The California Department of Public Health and the California Department of Food and Agriculture have issued COVID-19 Industry Guidance: Agriculture and Livestock.  The Guidance includes recommendations and guidance on how to help prevent the spread of COVID-19.  You can see the CDFA/CDPH guidance at the CDFA website.
  • The California Office of Emergency Services (Cal/OES) State Operations Center has made available two-million surgical masks and 10,000 cloth masks for farmworkers and other agricultural employees, with the cloth masks intended specifically for migrant housing facilities. These are being shipped to County Ag Commissioners’ offices and will be made available according to local needs.  This is a one-time emergency shipment to fill the gap while the supply chain catches up with high-volume demand.  There continues to be a significant shortage of N95 masks for health care workers, first responders, and the various agricultural and industrial activities that require N95 masks.  You can read more at the Cal/OES website.
  • National Council for Agricultural Employers:  Farm employers have been working hard in these very uncertain times to protect their workers and themselves.  As guidance from the Centers for Disease Control (CDC) has shifted as scientists have learned new information regarding the transmissibility of the Coronavirus, farm employers have been early adopters of effective mitigation strategies.  We all recognize the critical nature of feeding our nation while protecting worker safety. Please consider taking this National Council of Agricultural Employers survey which should take just a few minutes to complete.  Your individual responses will remain confidential and discrete to NCAE.  Provided enough responses are received, the compiled responses will be used by NCAE leadership and management to respond to inquiries from media, government officials and others regarding the efforts being made to safeguard health.
  • California Department of Industrial Relations, Division of Occupational Safety & Health (Cal/OSHA): Safety & Health Guidance: COVID-19 Infection Prevention for Agricultural Employers and Employees (Now Available in Spanish):  Cal/OSHA has released guidance outlining workplace practices to protect employees.  The agency states the guidelines provide information for agricultural employers to update their Injury and Illness Prevention Programs (IIPPs), saying "most California workplaces must consider the disease a workplace hazard."  The guidance does not recommend agricultural employers provide respirators to employees, except to the extent they are available and are provided to protect workers from excessive dust, Valley Fever spores, and other workplace respiratory hazards.
  • The U.S. Food & Drug Administration (FDA) has published guidance helping employers to distinguish between respirators, face masks, and cloth face coverings, which has been a topic of some confusion in recent weeks as CDC began to suggest use of face masks or face coverings and a number of California counties have mandated use of face masks for face coverings in their respective counties.  You can view FDA guidance here: (Use of Respirators, Facemasks, and Cloth Face Coverings in the Food and Agriculture Sector During Coronavirus Disease (COVID-19) Pandemic). 
  • Several Bay Area counties have in the last week issued orders for use of face coverings (they do not mandate use of surgical masks or N95 respirators in recognition of the shortage of those items for healthcare providers) but some of them (including the order issued by the Sonoma County Health Officer) include this language: "Employers who continue to operate, pursuant to the Health Officer Order (C19-05) Extending the Shelter in Place Order issued on March 31, 2020, and who require their employees to leave their residence to work or provide a service shall ensure that their employees comply with this Order while on duty by either (1) supplying employees with facial coverings, or (2) ensuring that employees have access to facial coverings, or (3) ensuring that their employees are using their own facial coverings."  Employers should bear in mind that when an employer is compelled by a county ordinance to provide a face covering, that face covering may be Personal Protective Equipment (PPE) subject to requirements related to PPE, and to Labor Code 2802, even if not required by any OSHA regulation or by the employer's policies. 
  • Editable version of Appendix A Social Distancing Protocols mandated by several COVID-19 county public health orders (Spanish)
  • The Workers Compensation Insurance Rating Bureau (WCIRB) has filed a regulatory change with the California Insurance Commissioner to change workers' comp rules to exclude COVID-19 claims from an employer's experience rating and to exclude sums paid to workers who are not working (as with Families First Coronavirus Response Act (FFCRA)-mandated paid sick leave and paid family leave) from payroll reportable for workers' comp purposes.
  • California Department of Pesticide Regulation (CDPR), in apparent response to concerns expressed from farmers about PPE shortages hampering pesticide applications, DPR has released two new publications: N95 Alternatives for Pesticide Handling (Spanish) and Gloves for Pesticide Handling (Spanish)
  • The Western Center for Agricultural Health and Safety (WCAHS) has released Coronavirus/COVID-19 Agricultural Employer Training Guide (Spanish) and makes a variety of English and Spanish-language resources available, including: Agriculture and COVID-19 FAQs (Spanish) (WCAHS); Coronavirus/COVID-19 Agricultural Worksite Checklist (Spanish); and Symptoms of Coronavirus Disease 2019 (Spanish) (U.S. Centers for Disease Control)
  • U.S. Centers for Disease Control has released Implementing Safety Practices for Critical Instrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19.  This guidance is aimed to assisting employers in return-to-work for agricultural workers (agriculture has been designated a critical infrastructure activity) who may have been exposed to someone with coronavirus.  The guidance describes a procedure employers can follow to return such individuals to work while minimizing infection risk to co-workers.  CDC has also released a good single-page summary, and "Do's and Don'ts for Essential Workers Who Have Been Exposed to COVID-19."
  • U.S. Occupational Safety and Health Administration: Enforcement Guidance for Use of Respiratory Protection Equipment Certified under Standards of Other Countries or Jurisdictions During the Coronavirus Disease 2019 (COVID-19) Pandemic: Federal OSHA releases new guidance intended to permit use of filtering facepiece respirators certified in other countries or jurisdictions, contingent on the employer maintaining a respirator protection program if one is in place, and on the employer assessing the availability, effectiveness and feasibility of engineering or administrative controls.  
  • U.S. Centers for Disease Control has released Implementing Safety Pracitices for Critical Instrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19.  This guidance is aimed to assisting employers in return-to-work for agricultural workers (agriculture has been designated a critical infrastructure activity) who may have been exposed to someone with coronavirus.  The guidance describes a procedure employers can follow to return such individuals to work while minimizing infection risk to co-workers. 
  • CDC: Recommendations for Cloth Face Coverings: CDC has released guidance recommending the use of face coverings to protect those who are not yet infected with COVID-19 from infected asymptomatic individuals who may be shedding virus.  CDC does not recommend face coverings as a means of protecting oneself from COVID-19 infection.  CDC's recommendations feature a video by U.S. Surgeon General Jerome Adams, "How to Make Your Own Face Covering." 
  • Safety/News reports on a study at the Pediatrics Department at Baylor College of Medicine indicating that elastomeric half-masks respirators (EHMRs) are practicable as replacements for N95 respirators in light of supply shortages on N95s in healthcare settings.  Presumably, EMHRs would be used with N95-specification disposable cartridges.
  • CDC: Recomended Guidance for Extended Use and Limited Re-Use of Filtering Facepiece Respirators in Healthcare Settings: ag employers have expressed concern about the availability of popular N95 filtering facepiece respirators commonly used in pesticide applications (including voluntary use during application of sulphur in grape vines) due to COVID-19 and heavy use of N95s in healthcare. While aimed at useage in healthcare settings, the CDC guidance indicates that extended useage of N95s may be acceptable.  Per CDC:  "To reduce the chances of decreased protection caused by a loss of respirator functionality, respiratory protection program managers should consult with the respirator manufacturer regarding the maximum number of donnings or uses they recommend for the N95 respirator model(s) used in that facility. If no manufacturer guidance is available, preliminary data suggests limiting the number of reuses to no more than five uses per device to ensure an adequate safety margin."
  • Monterey County Dept. of Public Health: ADVISORY FOR AGRICULTURAL WORKER PROTECTION DURING COVID-19 CRISIS ON THE CENTRAL COAST OF CALIFORNIA, 4/6/20 update
  • Farm Employers Labor Service (FELS): Safety Training for Agricultural Workers: CORONAVIRUS: Protect Yourself, Protect Your Family (English & Spanish)
  • Alameda, Contra Costa, Marin, San Francisco, San Mateo and Santa Clara counties and the City of Berkeley on March 31 revised their Shelter in place ordinances on March 31, including new public notice requirements enforceable April 2 through May 3.  We anticipate other counties may adopt similar requirements soon.  The amended orders require businesses still operating because they are essential businesses (as agricultural operations have been designated) to adopt more stringent social distancing requirements in new Shelter-in-Place protocols, post those protocols at or near the entrance of their place of business easily viewable to employees and the public, and provide a copy to each employee.   You can read Alameda County's revised order here.  Appendix A of the orders provide this sample protocol posting, and the above-mentioned orders include the following language: "For the purposes of this Order, all Essential Businesses must prepare and post by no later than 11:59 p.m. on April 2, 2020 a “Social Distancing Protocol” for each of their facilities in the County frequented by the public or employees." 
  • Society for Human Resource Management (SHRM): 2020 Coronavirus Best Practices - Spanish and English
  • UPDATED: U.S. Occupational Safety & Health Administration (OSHA): Guidance on Preparing Workplaces for COVID-19: note that federal OSHA has recently indicated that workplace COVID-19 infections are recordable (on OSHA-Cal/OSHA logs) though on-the-job influenza and common cold infections are not recordable (see OSHA: COVID-19 Standards).  OSHA recordkeeping regulations published in the Code of Federal Regulations (CFR) at 29 CFR Part 1904 generally specifies recordability requirements; COVID-19 can be recordable if a worker is infected as a result of performing their job duties, but employers must record such infections only if all the following conditions are met: (1) the case is confirmed COVID-19; (2) The case is work-related (see 29 CFR 1904.5); and (3) the case satisfies the general criteria to be recordable, i.e. it entails medical treatment other than first aid, days away from work and so forth (see 29 CFR 1904.7).
  • CDC: Resources for Businesses and Employers; includes interim guidance from CDC for employers

 

Wage & Hour, Leaves Issues: and UI/SDI/PFL

  • The Internal Revenue Service (IRS) has issued guidance on reporting of wages paid to employees as required for emergency paid sick leave or family leave required by the Families First Coronavirus Response Act (FFCRA).  Those waged must be reported on an employee's Form W-2 for 2020, and must be distinguished as having been paid as emergency paid sick leave for the employee's own illness, emergency paid sick leave because the employee was caring for someone else who was ill, or expanded family leave because the employee was providing care for a child who's school or daycare was unavailable due to COVID-19.
  • U.S Department of Labor (USDOL) has issued updated Families First Coronavirus Response Act (FFCRA) GuidanceFFCRA paid sick leave and expanded FMLA requirements are cumulative for 2020. If an employee uses their 80 hours of paid sick leave, is subsequently furloughed, returns to work and a need arises for additional sick leave, the employee is not entitled to additional paid leave under the FFCRA. Similarly, if an employee used six weeks of expanded FMLA during the spring of 2020 and needs additional leave in the fall because a child’s school or daycare is closed, the employee is entitled only to the amount of leave remaining (i.e. six weeks), not a renewed amount.  Employers cannot extend an employee’s furlough because the employee may qualify for leave under the FFCRA. An employer that is recalling employees from furlough may not extend an employee’s furlough because that employee may need leave under the FFCRA. For example, if an employee being recalled from furlough has a child whose school or daycare is closed, the employer cannot extend the furlough to avoid providing the employee with paid FFCRA leave. Employers may require an employee to provide a negative COVID-19 test before returning from an FFCRA leave, provided that the requirement is uniformly applied, and not only applied to employees who take FFCRA leave. For example, an employee requests two weeks of paid leave under the FFCRA to care for a family member who tested positive for COVID-19. Upon conclusion of the employee’s two weeks of paid leave, the employer may require the employee to provide a negative COVID-19 test or telework for a period of time only if the employer requires all employees to provide a negative COVID-19 test following exposure to someone who tested positive for COVID-19. If the rule is uniformly applied, it complies with the law. If it is applied only to employees who take FFCRA leave, then the rule violates the law.
  • The U.S. Centers for Disease Control (CDC) has broadened guidance on who may be at risk for severe illness due to COVID-19 because of age and underlying medical conditions.  According to the new guidance, risk increases with age (particularly after age 65) but younger people and people with underlying medical conditions can be at risk also.  Such conditions include common health conditions like pregnancy, obesity, Type 2 diabetes, and hypertension (high blood pressure).  The problem for employers posed by CDC’s new guidance is that many more people and their medical providers may now believe they are at greater COVID-19 risk that previously thought.  CDC generally recommend that people at higher rise limit social interaction and take preventative precautions.  Employers may see increasing requests for various types of paid and unpaid leaves and accommodations.  To the extent that employers may have either written or unwritten policies limiting leaves and accommodations to employees over age 65, those policies should be reconsidered.  In general, employers should always conduct individualized assessments of employees’ requests for reasonable accommodations, and those assessments should consider this new CDC guidance and recommendations from an employee’s health care provider. 
  • The Division of Labor Standards Enforcement, Dept. of Industrial Relation (DLSE) has published required workplace postings describing Paid Sick Leave for employees of large employers instituted by an Executive Order issued by Gov. Gavin Newsom on April 16.  Gov. Newsom's EO requires large (more than 500 employees) agricultural employers and other employers in food-related businesses from agriculture to grocery retailing to provide two weeks of paid sick leave similar to paid sick leave employees of fewer than 500 employers were mandated to provide by the federal Families First Coronavirus Response Act (FFCRA); here's a summary from FELS Group Legal Services Program partner law firm Barsamian & Moody.  DLSE has also published Frequently-Asked-Questions (FAQ) available here.
  • Stacy Henderson of the Ripon-based law firm Terpstra Henderson has published a thorough summary of the Families First Coronavirus Response Act (FFCRA)-mandated emergency Family and Medical Leave and Paid sick leave, and a flow-chart to help you evaluate employee requests to access these leaves.
  • Internal Revenue Service: IRS has issued revised guidance has issued revised guidance (superceding prior guidance) concerning tax credits available to reimburse employers for the cost of providing FFCRA-mandated leaves.  FAQ #6 and #10 appear to conflict with accompanying summary material on the webpage; please be advised further clarication may be forthcoming.  FAQ#9 explains how to calcuate the cost for which you can claim a credit for health insurance benefits.
  • California Employment Development Department (EDD): information for employers and employees on filing for Unemployment Insurance Benefits: DE 1275A: A Guide to Employment and Benefit Services;  EDD 1326CD: Acceptable Documents for Identity Verification; DE 1101ID: DE 1101ID: Unemployment Insurance Application 
  • U.S. Department of Labor (DOL) has revised Frequently-Asked-Questions (FAQ) concerning Families First Coronavirus Response Act-mandated Paid Sick Leave and expanded Family and Medical Leave.  The new FAQs (Nos. 80-88) focus on when and how FFCRA-mandated leaves can be run concurrently with existing FMLA (note that DFEH has not issued any guidance with respect to the interaction of California Family Rights Act (CFRA) leave with regard to possible concurrence); calculating FFCRA Paid Sick Leave and expanded Family and Medical Leave for employees with irregular hours; and calculating the regular rate of pay for employees on FFCRA-mandated paid leaves. 
  • U.S. Dept. of Labor (DOL) releases final regulations governing FFCRA-mandated Expanded Family and Medical Leave and Paid Sick Leave and frequently-asked-questions (FAQs) concerning the new regulations and the underlying law, and FELS Group Legal Services Program partner firm Barsamian & Moody publishes an explainer on these developments, "DOL Releases FFCRA Regulations and More FAQs."  The final regulations and accompanying FAQ specify that "subject to a Federal, State, or local quarantine or isolation order" (the criteria to determine if an employee is eligible for FFCRA-required leaves) is an order that causes an employee to be unable to work even though the employer has work available for that worker.  The guidance also specifieis that an employee may take (and an employer can receive reibursement payroll tax credits for) only if, "but for being subject to the order," the employee would be able to work.  According to DOL, the key question is whether the employee would be able to work (or telework) but for being required to comply with an isolation or shelter order.  The regulatory guidance also offers helpful clarification about what records employers can demand (and must keep) from employees seeking FFCRA-required leaves.
  • U.S. DOL has released its latest round of guidance on leaves required by FFCRA; new guidance is also released by California Department of Fair Employment and Housing; analysis provided by FELS Group Legal Services partner law firm Barsamian & Moody.
  • U.S. DOL has released notice # WH 1422 employer workplace information poster on FFCRA leaves (Spanish) If you employ fewer than 500 employees and are covered by the FFCRA leaves requirements PRINT & POST IT AS SOON AS POSSIBLE ALONG WITH OTHER WORKPLACE POSTINGS. 
  • Seyfarth Shaw Wage & Hour Litigation Blog: If Your Remedy For Workplace Coronavirus Issues Affects Pay, Don’t Compound The Harm With A Wage Law Violation
  • California Dept. of Indus. Relations, Divison of Labor Standards Enforcement (DLSE): FAQ on Laws Enforced by the California Labor Commissioner's Office
  • EDD: Coronavirus 2019: information on availability of unemployment insurance, disability insurance and paid family leave

 

Discrimination & Employee Privacy Issues:

  • EEOC has also issued additional guidance (see question H. Age) on dealing with employees over age 65; the guidance points out that EEOC enforces protections of the Age Discrimination in Employment Act (ADEA) protecting employees age 40 and older.  According to EEOC, ADEA prohibits an employer from involuntarily excluding an employee because that employee is 65 or older, even in light of guidance from the Centers for Disease Control (CDC) indicating that COVID-19 poses a greater threat to older employees.  EEOC notes that because older employees may have medical conditions affording them disability protection under the Americans with Disabilities Act (ADA), entitling them to accomodation for that disability.
  • The federal Equal Employment Opportunity Commission (EEOC) has issued revised guidance (see question A.7.) to the effect employers may not require employees to submit a negative COVID-19 antibody test to determine whether the employee may return to work.  According to EEOC, this constitutes a medical examination under the Americans with Disabilities Act (ADA) that is impermissible because it is not "job related and consistent with business neccessity."  Virus tests used to detect current infection are permissible because in infected employee poses a direct threat to the health of all employees.
  • EEOC has also issued additional guidance (see question H. Age) on dealing with employees over age 65; the guidance points out that EEOC enforces protections of the Age Discrimination in Employment Act (ADEA) protecting employees age 40 and older.  According to EEOC, ADEA prohibits an employer from involuntarily excluding an employee because that employee is 65 or older, even in light of guidance from the Centers for Disease Control (CDC) indicating that COVID-19 poses a greater threat to older employees.  EEOC notes that because older employees may have medical conditions affording them disability protection under the Americans with Disabilities Act (ADA), entitling them to accomodation for that disability.
  • EEOC has issued new guidance indicating that an employer may test an employee for COVID-19 before permitting the employee to enter the workplace without violating the Americans With Disabilities Act (ADA).  EEOC's reasoning is that the presence or absence of COVID-19 is job-related and consistent with business neccessity.  The California Department of Fair Employment and Housing (DFEH) has not yet issues similar guidance, but often follows EEOC's lead on these questions.  You can review EEOC's guidance at this link. 
  • U.S. EEOC: What You Should Know About the ADA, the Rehabilitation Act, and COVID-19
  • U.S. EEOC: Pandemic Preparedness in the Workplace and the Americans with Disabilities Act

 

Shelter-in-Place/Shelter-at-Home related issues:

 

401(k)-related issues:

  • The Cal/Savers Retirement Program oversight board voted on April 16 to delay the deadline for employers of 100 or more employees to register with the program from June 30 to September 30.  The Cal/Savers program will require employers to withold earnings from employees for a state-directed retirement savings program.  FELS parent, California Farm Bureau Federation (“CFBF”) is working with Nationwide Financial to support the CFBF’s creation of a new multiple employer retirement plan (“MEP”) that is available to all CFBF members with employees, even those that already sponsor a retirement plan. 
  • Varnum Attorneys-at-Law: COVID-19 (Coronavirus) Response: 401(k) Questions

 

Immigration & H-2A-Related Issues:

  • The Department of Homeland Security and U.S. Immigration and Customs Enforcement (ICE) have issued a temporary policy to allow employers to accept expired List B documents when completing the Form I-9 beginning May 1. This policy recognizes the fact that many people are unable to renew their driver’s licenses or state ID cards at this time due to stay-at-home orders. While some states have extended the expiration of driver’s licenses and state identification cards, which are common List B documents, others have not (California has issued a blanket extension for drivers under age 70 until May 31).  List B documents that expire on or after March 1, 2020, and have not been extended by the state may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.  If an employee presents their driver’s license that expired on or after March 1 and it was not extended by the state, employers should record the documentation information in Section 2 under List B, as applicable; and enter the word “COVID-19” in the Additional Information field.  When the DHS ends this temporary policy, employers must require the employee to provide a valid unexpired document within 90 days. (The replacement for the expired document is preferred, but employees may choose to present a different document or documents to satisfy the I-9 requirements.) If the employee’s List B identity document expired on or after March 1, 2020, and the issuing authority has extended the document expiration date because of COVID-19, the document is acceptable as a List B document for Form I-9 (not as a receipt) during the extension timeframe specified by the issuing authority. In that case, the employer must enter the document’s expiration date in Section 2; and enter “COVID-19 EXT” in the Additional Information field. You can find more information at ICE's website.
  • U.S. Dept. of Labor Employment & Training Administration, Office of Foreign Labor CertificationCOVID-19 FAQ, Round 3
  • Information from American Farm Bureau Federation indicates the employers will not be able to use Paycheck Protection Program (PPP) loans provided through the CARES Act because allowable "payroll" excludes foreign national employees.
  • USDOL ETA OFLC: COVID-19 FAQ, Round 2
  • CJ Lake, LLC: FAQs for H-2A
  • USDOL ETA OFLC: COVID-19 Frequently-Asked Questions

 

From FELS Group Legal Services Program partner law firm Barsamian & Moody: 

 

COVID-19 General Information:

Thousands of cases of the coronavirus (COVID-19) have been detected in at least 47 countries, including the United States. What should you do do now to be ready should COVID-19 cause disruption of your workforce? There is no one-size-fits-all answer; but you should start now to consider how to handle the problems that may arise as a result of COVID-19 whether it reaches true epidemic status or if it continues to be a public health issue that causes nervousness among your workforce.

How does Coronavirus spread?  Coronavirus generally spreads between people within 6 feet of each other through respiratory secretions, especially coughing and sneezing. It is not currently known whether the virus can be transmitted by touching a surface with the virus on it.

What can you do now?  It is important for farm employers to maintain open lines of communication with their employees. Update contact information for employees if necessary and stay informed of the latest news. The Centers for Disease Control and Prevention (CDC) has also issued “Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease.” The CDC recommends that employers begin implementing the following steps now:

  • Encourage employees with acute respiratory illnesses to stay home; be sure employees are aware of the availability of Paid Sick Leave as required by AB 1522 (2015) (see also FELS’ Fact Sheet: AB 1522 Paid Sick Leave Mandate) and job-protected leave under the California Family Rights and the federal Family and Medical Leave Act  (also see and that you are prepared to administer these leaves.
  • Keep in mind that more employees than normal may be unavailable to work because they are caring for other family members who are ill and try to plan for replacements if possible;
  • Make sure vendors and contractors whose employees come into your workplace are aware of issues surrounding COVID-19;
  • Separate sick employees if they begin to show symptoms;
  •  Emphasize cough and sneeze etiquette (covering coughs and sneezes) and hand hygiene (frequent handwashing for at least 20 seconds);
  •  Perform routine environmental cleaning, like wiping down surfaces, door knobs and handles, control handles and control panels, keyboards and mouses, light switches, and other surfaces frequently touched by employees;
  •  Advise employees like buyers and salespersons about the risks prior to travel to countries that have had a significant outbreak;
  •  Consider informing employees in the case of possible exposure in the workplace; maintain the confidentiality of the identity of any employee you know to be infected.

 

What plans should employers put in place?  The CDC also recommends that employers create response plans now in case an outbreak does occur in the United States. Employers should create response plans that would:

  • Reduce transmission among your workforce; 
  • Protect people at higher risk for adverse health complications;
  •  Maintain business operations; and,
  •  Minimize adverse effects on other entities in their supply chains.

 

Can you allow short-term telecommuting for some positions? Can you permit employees to work flexible schedules? Can you cancel some or all business travel? Have fewer in-person meetings? There is no single answer to these questions for every farm business.

Can employers require employees to undergo medical examinations?  The Equal Employment Opportunity Commission has recently released guidance, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” reminding that employers may not require medical examinations under the ADA unless the medical exam is job-related and consistent with business necessity. Whether a medical exam is job-related and consistent with business necessity depends upon the situation (e.g., what are the employee’s symptoms, where has the employee been, or how might the employee been exposed, etc.) and the latest CDC guidance on coronavirus.

What actions can employers take in the case of a pandemic?  If COVID-19 expands to epidemic or pandemic status, employers can send employees home if they show coronavirus-like symptoms at work. Furthermore, employers may ask employees if they are experiencing coronavirus-like symptoms as long as they are mindful of confidentiality obligations. Finally, if an employee returns from traveling during a pandemic, an employer may ask the employee whether they are returning from a location where that individual may have been exposed to the virus.

Obviously, this is an evolving issue. Employers who plan for it will be in a better position to deal with it if it becomes a crisis in the United States.

 

COVID-19 Major Milestones:

  • March 19: Gov. Newsom issued an executive order imposing a state-wide "stay-at-home" mandate to mitigate the spread of COVID-19.  This unprecedented order applies to the entire state, including counties that had not yet issued "shelter-in-place" or "stay-at-home" orders.  Gov. Newsom's order cites "federal critical infrastructure" sectors neccessary to continuity of operations, exempting workers in those sectors from the "stay-at-home" order.  The production of food is one of the exempted sectors (See U.S. Department of Homeland Security Critical Security Infrastructure Administration's "Critical Infrastructure Sectors: Food and Agriculture"); workers involved in food production are specifically exempted from Gov. Newsom's order.
  • The State of California has consolidated resources on COVID-19 response at a single website with links to various agencies includng the Department of Public Health, the Employment Development Department, and the Franchise Tax Board: Coronivirus (COVID-19) in California.  
  • Comprehensive and Updated FAQs for Employers on the COVID-19 Coronavirus: updated daily, from national law firm Fisher Phillips.
  • Four additional counties (Lake, Mendocino, Napa and Yolo, and the City of Fresno) have issued shelter-in-place orders; Sutter County and Yolo County issued a joint shelter-at-home directiveSolano County issued an order limiting all gatherings if 6-foot distancing cannot be maintained.  Orange County amended it's previous order allowing businesses to continue operating without social distancing.
  • President Trump has signed the Families First Coronavirus Response Act (H.R. 6201), requiring employers of 500 or fewer to provide family and medical leave and paid sick leave, as well as providing tax credits to defray the cost of these mandates; you can read more here.
  • March 18: Updated ICE Statement on COVID-19: "To ensure the welfare and safety of the general public as well as officers and agents in light of th eongoing COVID-19 pandemic response, U.s. Immigration and Customs Enforcement (ICE) will temporarily adjust its enforcement posture beginning today, March 18, 2020.  ICE's highest priorities are to promote life saving and public safety activities.  ICE Enforcement and Removal Operations (ERO) will focus enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds." 
  • Sonoma, San Benito, and Monterey Counties have issued shelter-in-place orders.
  • Six Bay Area counties (San Francisco, Santa Clara, San Mateo, Contra Costa and Alameda, along with the City of Berkeley) adopted Shelter-In-Place orders  effective March 17; food production exempted; see "Order of the Health Officer of the County of Santa Clara" (the Bay Area County orders appear to be patterned after each other) in particular Section 10.f.ii and iii exempting grocery stores, farmers markets and farm stands and farming and livestock production.  On March 18, Santa Cruz County and inland counties like Fresno and Sacramento also adopted partial shelter-in-place orders, with uncertain impacts on food-related businesses. 
  • March 15: Gov. Newsom directed about 5 million Californians over the age of 65 to self-isolate to reduce their risk of COVID-19 exposure.

 

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