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COVID-19 News & Resources for Farm Employers

Bryan Little, Farm Employers Labor Service

Updated July 9, 2020

 COVID-19 Updates:

  • Several agencies of the state government including California Department of Industrial Relations, Division of Occupational Safety & Health (Cal/OSHA), the Department of Business and Consumer Affairs, the Department of Alcohol Beverage Control and others are engaged in a multi-week campaign of enforcement sweeps to enforce Gov. Newsom's most recent executive order concerning partial re-locking down of parts of the economy and wearing of face masks.  Agency leaders are telling employer organizations they are engaged in education and outreach to ensure employers are implementing workplace safety and health recommendations, and assert that guidance like Cal/OSHA's Safety & Health Guidance: COVID-19 Infection Prevention for Agricultural Employers and Employees (Spanish) and their COVID-19 General Checklist (Spanish) and Daily Checklist (Spanish) put employers on sufficient notice of a prevalent workplace hazard that employers are obliged under General Industry Safety Order (GISO) 3203 (Injury and Illness Prevention Plans, IIPP) to implement COVID-19 workplace safety and health recommendations in the guidance and checklists.
  • 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.
  • 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.
  • 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.

 

COVID-19 Resources for Farm Employers:

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

  • 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:

  • 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

 

Discrimination & Employee Privacy Issues:

  • 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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