Employment Guidelines
The FFRCA, the CARES Act and OSHA Guidelines
In the first four weeks since Governor Newsom issued a statewide shelter-in-place executive order, California has processed 2.3 million unemployment insurance claims – more than the total amount of claims filed in 2019. This FAQ Sheet is meant to address questions and concerns shared by employees in the state and across the country in the wake of such uncertainty.
The laws and local orders change daily; this FAQ is current as of April 24, 2020. As more information emerges, we will do our best to update these resources as necessary.
What is the Families First Coronavirus Response Act (FFRCA)?
The FFRCA requires some employers to provide paid leave or expanded family and medical leave to employees who are unable to work (including remote work) because of reasons related to COVID-19.
The Act provides that covered employers must provide the following to all employees:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay if the employee cannot work because the employee is quarantined pursuant to a Federal, State, or local government order, or based on a health care provider’s advice, and/or who are experiencing COVID-19 symptoms and seek a medical diagnosis;
- Two weeks (up to 80 hours) of paid sick leave at 2/3rds the employee’s regular rate if the employee cannot work because of a bona fide need to take care of another individual who is subject to quarantine pursuant to a Federal, State, or local government order, or based on a health care provider’s advice, and/or to care for a child under 18 years old whose school or childcare provider is closed or unavailable due to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services in consultation with the Secretaries of the Treasury and Labor.
The Act provides that covered employers must provide the following to employees employed for at least 30 days:
- Up to an additional 10 weeks of paid expanded family and medical leave at 2/3rds the employee’s regular rate of pay if the employee is unable to work because of a bona fide need for leave to care for a child whose school or childcare provider is closed or unavailable due to COVID-19.
Pursuant to the FFRCA, an employee qualifies for paid sick time if the employee is unable to work (including remote work) due to the following:
Qualifying Reasons for Leave:
Employee is subject to Federal, State, or local quarantine or isolation order related to COVID-19.
Duration of Leave:
Full-time employee: up to 80 hours of leave.
Part-time employee: number of hours the employee is normally scheduled to work over that period.
Calculation of Pay:
Employee’s regular rate or applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period.)
Qualifying Reasons for Leave:
Employee has been advised by a health care provider to self-quarantine related to COVID-19.
Duration of Leave:
Full-time employee: up to 80 hours of leave.
Part-time employee: number of hours the employee is normally scheduled to work over that period.
Calculation of Pay:
Employee’s regular rate or applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period.)
Qualifying Reasons for Leave:
Employee is experiencing COVID-19 symptoms and is seeking medical diagnosis.
Duration of Leave:
Full-time employee: up to 80 hours of leave.
Part-time employee: number of hours the employee is normally scheduled to work over that period.
Calculation of Pay:
Employee’s regular rate or applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period.)
Qualifying Reasons for Leave:
Employee is caring for an individual subject to an order or self-quarantine described above.
Duration of Leave:
Full-time employee: up to 80 hours of leave.
Part-time employee: number of hours the employee is normally scheduled to work over that period.
Calculation of Pay:
2/3rd of employee’s regular rate or 2/3rd of applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period.)
Qualifying Reasons for Leave:
Employee is caring for a child whose school or childcare is closed or unavailable for reasons related to COVID-19.
Duration of Leave:
Full-time employee: up to 12 weeks at 40 hours a week.
Part-time employee: number of hours the employee is normally scheduled to work over that period.
Calculation of Pay:
2/3rd of employee’s regular rate or 2/3rd of applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period—two weeks of paid sick leave followed by up to 10 weeks paid expanded family and medical leave.)
Qualifying Reasons for Leave:
Employee is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Duration of Leave:
Full-time employee: up to 80 hours of leave.
Part-time employee: number of hours the employee is normally scheduled to work over that period.
Calculation of Pay:
2/3rd of employee’s regular rate or 2/3rd of applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period.)
Can my employer fire me for taking sick leave under the FFRCA?
No. Employers may not discharge, discipline, or otherwise discriminate against any employee who takes paid sick leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA.
Employers in violation of the first two weeks’ paid sick time or unlawful termination provisions of the FFCRA will be subject to the penalties and enforcement described in Sections 16 and 17 of the Fair Labor Standards Act. 29 U.S.C. 216; 217. Employers in violation of the provisions providing for up to an additional 10 weeks of paid leave to care for a child whose school or place of care is closed (or child care provider is unavailable) are subject to the enforcement provisions of the Family and Medical Leave Act. The Department of Labor will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the FFRCA.
What is the CARES Act?
The Coronavirus Aid, Relief, and Economic Security (CARES) Act is an economic relief package of over $2 trillion aimed at providing direct economic assistance to employees, families, and small businesses.
Is the government giving out checks to everybody? How do I get mine?
Part of the CARES Act relief provides “Economic Impact Payments” of up to $1,200 per adult whose income was less than $99,000 (or $198,000 for joint filers) and $500 per child under 17 years old (or up to $3,400 for a family of four). Even if you are not typically required to file a tax return (e.g. Social Security recipients, railroad retirees), you are still likely eligible to receive payment.
More information about how you can determine your eligibility can be found on the IRS’ website.
Will I be able to return to my job?
Every employer will make different decisions based on their financial circumstances and business needs. However, the CARES Act incentivizes employers to retain employees on the payroll by offering Employee Retention Credit, deferring Social Security tax payment, and providing payroll support for workers employed by air carriers.
I run a small business. Is there any relief available for my business?
Yes. The CARES Act provides a number of resources to help small businesses maintain payroll, rehire employees, and cover overhead. These include:
- The Paycheck Protection Program, which provides small businesses with funds to pay up to 8 weeks of payroll costs, benefits, pay mortgage interest, rent, and utilities;
- Economic Injury Disaster Loans, where small businesses with fewer than 500 employees may apply for economic relief of up to $10,000 due to a temporary loss in revenue, and will not need to be repaid.Find out more information about whether your small business is eligible on the Department of Treasury’s website.
I’m an essential worker who is still working onsite. What precautions must my employer take and how can I protect myself?
The Division of Labor’s Occupational Safety and Health Administration (OSHA) has issued a series of guidelines to help employers comply with workplace safety and health regulations and provide employees with information on how to protect themselves and prevent the spread of disease.
- OSHA requires employers to implement a comprehensive respiratory protection program pursuant to its Personal Protective Equipment (PPE) standards: where a job’s hazards warrant protection, employers must provide gloves, eye and face protection, and respiratory protection.
- OSHA also requires employers to provide each employee “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious harm.”
- Where employees are exposed to hazardous chemicals, which may be contained in common sanitizers and sterilizers, employers must provide and maintain in a sanitary and reliable condition: personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields wherever necessary.
My employer is not covered as an employer required to comply with the Aerosol Transmissible Diseases (ATD) Standard as defined in California’s Code of Regulations. Does my employer have to do anything differently?
First, check with Cal/OSHA to verify whether your employer is covered under the ATD Standard. Additionally, OSHA has classified risk of exposure to COVID-19 into four categories:
- Very High: i.e. Healthcare, laboratory, morgue
- High: i.e. Healthcare delivery/support, medical transport, mortuaries
- Medium: i.e. Frequent contact with international travel, schools, retail
- Low: i.e. Offices, manufacturing/industrial facilities, long-haul drivers
Even employers not covered by the ATD standard or not subject to a high risk of exposure must provide the following:
- Injury and Illness Prevention Program (IIPP) – All employers must have an IIPP (title 8 section 3203) to protect employees from workplace hazards. Employers are required to determine if COVID-19 infection is a hazard in their workplace. If it is a workplace hazard, then employers must: (1) Implement measures to prevent or reduce infection hazards, such as implementing the CDC recommended actions listed above, and (2) Provide training to employees on their COVID-19 infection prevention methods.
- Washing Facilities – Regardless of COVID-19 risk, all employers must provide washing facilities that have an adequate supply of suitable cleansing agents, water and single-use towels or blowers.
- Personal Protective Equipment (PPE) – Title 8 section 3380 Personal Protective Devices requires employers to conduct a hazard assessment to determine if hazards are present in the workplace that necessitate the use of PPE. If an employer identifies COVID-19 as a workplace hazard, they must select and provide exposed employees with properly fitting PPE that will effectively protect employees.
- Title 8 section 5141 Control of Harmful Exposures requires employers to protect employees from inhalation exposures that can result in injury, illness, disease, impairment or loss of function. COVID-19 is a harmful exposure if there is an increased risk of infection at the workplace. Employers must implement engineering controls where feasible and administrative controls where practicable, or provide respiratory protection where engineering and administrative controls cannot protect employees and during emergencies.
For more information on respirator use see section 5144 and the federal OSHA respiratory protection etool. Surgical and other non-respirator face masks do not protect persons from airborne infectious disease and cannot be relied upon for novel pathogens. They do not prevent inhalation of virus particles because they do not seal to the person’s face and are not tested to the filtration efficiencies of respirators.
I don’t think my employer is complying with OSHA standards. Can I be fired for reporting them?
No. Employers are prohibited from retaliating against workers for raising concerns about safety and health conditions, pursuant to Section 11(c) of the Occupational Safety and Health Act of 1970, 29 USC 660(c). Additionally, OSHA has a Whistleblower Protection Program which protects employees from retaliation for reporting concerns about hazards or violations. If you think you have suffered retaliation, submit a complaint to OSHA as soon as possible.
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