April 21, 2020
TPO Update
For questions or additional information regarding the below update, please contact Michaelle Stanford, PHR-ca, M.A. at michaelles@tpohr.com
CA Provides COVID-19 Supplemental Paid Sick Leave – Food Sector Workers
On April 16, 2020, Governor Newsom signed Executive Order ("EO") N-51-20, that provides COVID-19 supplemental paid sick leave (CPSL) to certain food sector workers throughout the period of any statewide stay-at-home orders by California’s Public Health Officer. Effective immediately, this applies to employers with 500+ employees. The employer must provide 80 hours of CPSL to a worker it considers full-time or if the individual worked or was scheduled to work on average at least 40 hours per week in the two weeks preceding the leave. Non-full-time workers with a normal weekly schedule will receive the total number of hours the hiring entity normally schedules the worker to work over two weeks.
Additionally, the Executive Order provides health and safety standards to increase worker and customer protection by permitting workers at food facilities to wash their hands every 30 minutes, or as needed, to increase proper sanitation measures.
Taking Temperatures
As businesses begin to bring back or hire employees into the workplace, it is reasonable to recommend you:
2) have reminders throughout the day (such as in break rooms, pop-ups on computers at specified intervals, etc.). It also seems reasonable to provide thermometers to employees if they wish to take THEIR OWN temperatures and if there is a temperature to not work and to contact a specified individual.
If the business wishes to facilitate the required temperature check, it gets more complicated. Government agencies now allow it for this pandemic (in general, they had not previously), but in doing so the employer needs to consider the logistics such as designating who is going to perform the checks, giving prior notice and how to not violate employee privacy, ensure everyone who enters the building are screened, not just employees, capture the date per person and file each in their own confidential file (not for all employees), pay hourly workers for waiting for the temperature check, have a procedure for dealing with temperatures that are too high and responding the same to all employees across the board.
“In California, the law requires that the company provide not only prior notice to individuals before scanning their temperatures but also that the notice meets the requirements of a Notice of Collection under the California Consumer Protection Act. Specifically, the Notice must explain that the company will collect the employees’ body temperature and describe each purpose for which the company will use that information. While employers might normally be inclined to direct an employee who does not pass the temperature screen to seek testing, employers should be mindful of the strains that the COVID- 19 outbreak is placing on the healthcare system at this time, and the likelihood that an employee may not be able to get tested promptly”.
Department of Labor (DOL) Recent FAQ Updates
The Department of Labor (DOL) has updated their FAQ’s now 5 times, with this last round bringing the number to 88! These FAQ’s predominantly focus on enforcement and how to calculate payment of Emergency Paid Sick Leave (EPSL) and/or Emergency Paid Family Leave (EFMLA). https://www.dol.gov/agencies/whd/pandemic/ffcra-questions .
In addition, further clarification is provided regarding employee eligibility
#87) Are stay-at-home and shelter-in-place orders the same as quarantine or isolation orders?
If so, when can I take leave under the FFCRA for reasons relating to one of those orders? Yes, as explained in Question 60 , for purposes of the FFCRA, a Federal, State, or local quarantine or isolation order includes shelter-in-place or stay-at-home orders, issued by any Federal, State, or local government authority. However, in order for such an order to qualify you for leave, being subject to the order must be the reason you are unable to perform work (or telework) that your employer has for you. You may not take paid leave due to such an order if your employer does not have work for you to perform as a result of the order or for other reasons.
For example, if you are prohibited from leaving a containment zone and your employer remains open outside the containment zone and has work you cannot perform because you cannot leave the containment zone, you may take paid leave under the FFCRA. Similarly, if you are ordered to stay at home by a government official for fourteen days because you were on a cruise ship where other passengers tested positive for COVID-19, and your employer has work for you to do, you are also entitled to paid sick leave if you cannot work (or telework) because of the order. If, however, your employer closed one or more locations because of a quarantine or isolation order and, as a result of that closure, there was no work for you to perform, you are not entitled to leave under the FFCRA and should seek unemployment compensation through your State Unemployment Insurance Office.
Osha’s Interim Guidance & Reporting
For workers with confirmed COVID-19 illness, The Federal Occupational Safety and Health Administration (OSHA) issued interim enforcement guidance for OSHA’s recordkeeping requirements ( 29 CFR Part 1904 ) as it relates to COVID-19 reporting.
Under OSHA’s record keeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if the case:
• Is confirmed as a COVID-19 illness;
Note: Cal/OSHA has not yet posted record-keeping requirements related to COVID-19; however, in a letter by the Cal/OSHA Chief dated April 8, 2020 he affirms California’s alignment to the federal’s interim guidance. Due to the recent changes, we advise that you work closely with your designated Safety Representative, Workers' Compensation Carrier and Workers’ Compensation Attorney.
