Tracy Emmerich | February 4, 2021
During the current COVID-19 pandemic, every day brings new information, concerns, and challenges regarding the spread of the virus, its economic and social impacts, and government directives. Leap Solutions remains dedicated to keeping you informed and empowered by delivering relevant, up-to-the-minute information and resources.
Our organizational development specialists are here to help support you with your online strategic planning, team development, executive coaching, training, program evaluation, and community engagement. Essentially, we can convert anything that you need in support of your business to a virtual experience. You still want to accomplish your plans, goals, and outcomes. We are here—virtually to help you achieve them.
The coming of a new year means the coming of new California employment and labor laws. As always, Leap Solutions is here to help you face them proactively and confidently. Our HR professionals have the knowledge, expertise, and resources to inform and guide you through ever-changing legislation and empower your company to thrive in 2021 and beyond.
Our Newsletter will cover:
- Families First Coronavirus Response Act (FFCRA)
- AB 685 Workplace Safety (Effective January 01, 2021)
- Written COVID-19 Prevention Program (November 20, 2020)
- SB 1383 Expands California Family Rights Act (CFRA) (Effective January 01, 2021)
- Mandatory Sexual Harassment Training (Effective January 01, 2021)
- Minimum Wage and Salary Requirements for Exempt Employees (Effective January 01, 2021)
- Paid Family Leave (Effective January 01, 2021)
- Agriculture under Wage Order 14 (Effective January 01, 2021)
- Additional Handbook Policies to Review
Families First Coronavirus Response Act (FFCRA)
The Families First Coronavirus Response Act (“FFCRA”) expired December 31, 2020. The FFCRA applied to employers with 500 or fewer employees and provided workers emergency paid sick leave because of the COVID-19 pandemic. The Department of Labor recently confirmed that employers are not required to provide employees with FFCRA leave after December 31, 2020, but may voluntarily decide to provide employees such leave. Congress also extended employer tax credits for paid sick leave and the expanded family and medical leave for voluntary use through March 31, 2021. It is important that employers have a way to document the sick and leave under FFCRA to receive the payroll credits.
AB 685 Workplace Safety
(Effective January 01, 2021)
AB 685 expands employee COVID-19 protections by requiring employers to provide notice of a “potential exposure” to COVID-19 within one business day. The notice should go to all employees and employers of subcontracted employees (and employee-representatives) who were at a worksite within the infectious period who may have been exposed to the virus. The notice must be written in a manner typically used to communicate to all employees, employers of subcontracted employees, and employee representatives (e.g., unions), in the form of a letter, email, or text message, but only if employees anticipate receiving communication from the employer in this manner. The notification must be in writing and a phone call will not satisfy this requirement. Also, written communication should be in English and the language understood by the majority of the employees.
The notice must contain:
- Information regarding COVID-19 related benefits that employees may receive, including paid sick leave, workers’ compensation, and anti-retaliation protections
- Company’s disinfection protocols and safety plan to eliminate any further exposures
Companies are also required to notify California’s Department of Public Health if there are sufficient COVID-19 positive cases that meet the definition of a COVID-19 outbreak.
Written COVID-19 Prevention Program
(November 20, 2020)
The Occupational Safety and Health Standards Board (Cal/OSHA) adopted comprehensive and complex COVID-19 emergency regulations directing employers to address a variety of issues related to COVID-19 in the workplace including establishing and implementing a written COVID-19 Prevention Program (CPP) detailing the systems and protocols in place for mitigating and responding to COVID-19 infections in the workplace. This program can be integrated into the employer’s existing Injury and Illness Prevention Program (IIPP) or can be a stand-alone document. There are 11 sections the program must address. If your workplace regularly receives customers, clients, patients or visitors, make sure your COVID-19 plan covers workplace violence in in the response plan. Contact Leap Solutions if you need help writing your plan.
SB 1383 Expands California Family Rights Act (CFRA)
(Effective January 1, 2021)
SB 1383 reduces the number of employees required for the California Family Rights Act (“CFRA”) to apply to employers with five (5) or more employees; a significant reduction from the old standard, which was fifty (50) or more employees. The updated CFRA offers employees 12-weeks of unpaid job protected leave and repeals The New Parent Leave Act (“NPLA”). CFRA also expands the definition of “family member” to include a child (of any age) of a domestic partner, grandparent, grandchild, sibling, or domestic partner. It is important to modify existing policies and procedures to provide for CFRA leaves of absence. CFRA can be complex with specific employee notice requirements that must be properly implemented. For a company with 50 or more employees who has already been covered under CFRA (and FMLA), revisions should be made to existing FMLA/CFRA leave policies to incorporate these revisions to CFRA.
Mandatory Sexual Harassment Training
(Effective January 1, 2021)
Employers with five or more employees are required to have provided two hours of sexual harassment training to supervisors and one hour to non-supervisorial employees within six months of hire or promotion, and employers must continue this training every two years thereafter. Temporary and seasonal employees will be required to be trained within 30 days of hire or 100 hours worked, whichever is earlier.
Minimum Wage and Salary Requirements for Exempt Employees
(Effective January 1, 2021)
The minimum monthly salary requirement for exempt executive, administrative, and professional employees is no less than two times the state minimum wage for full-time employment. It is based on the current state minimum wage, not any applicable local minimum wage. Accordingly, January 1, 2021 minimum salary threshold for these exemptions is as follows:
- For employers with 25 or fewer employees, the state minimum is $13 per hour. Accordingly, the minimum monthly salary test for these exemptions is $4,506.67 per month ($54,080 per year).
- For employers with 26 or more employees, the state minimum wage is $14 per hour. Accordingly, the minimum monthly salary test for these exemptions is $4,853.33 per month ($58,240 per year).
Paid Family Leave
(Effective January 1, 2021)
California’s Paid Family Leave (PFL) offers employees wage replacement through EDD program is expanded to include payments for time off for “qualifying exigencies” related to a family member’s military service. Benefits will be available if employees take time off for activities related to the covered active-duty status of their spouse, registered domestic partner, child, or parent who is a member of the U.S. Armed Forces. Called “qualifying exigencies,” these activities might include such things as official military ceremonies; briefings; changes to child care or financial or legal arrangements as a result of military service; counseling; or spending time with the covered servicemember during rest and recuperation leave.
Beginning July 1, 2020, PFL benefits were extended to a maximum of eight weeks in a 12-month period.
Agriculture under Wage Order 14
(Effective January 1, 2021)
Agricultural employers under Wage Order 14 with 26 or more employees are subject to a series of phased-in overtime changes. Agricultural employers with 25 or fewer employees remain covered by the old rules but will begin phased-in overtime changes in 2022. Agricultural employers with 26 or more employees will now pay time and one-half for hours worked more than 8.5 per day or 45 per week. On the seventh consecutive day of work in a workweek, agricultural employees are entitled to time and a half for the first eight hours and double-time after eight hours. It is important employers designate their workweek. If a workweek is not designated, the law presumes a workweek of 12:01 a.m. Sunday to midnight Saturday. In addition, the day of rest requirement does not apply when hours worked do not exceed 30 in any workweek or six in any workday. The exception for employees working shifts of six hours or less only applies to those who never exceed six hours of work on any day of the workweek.
Additional Handbook Policies to Review
Due to the coronavirus pandemic, many employer practices may have changed, which might warrant employee handbook updates. Ensure your written documents match your practices.
Victims of Crime or Abuse
- Expands the prohibition on discrimination and retaliation against employees who are victims of crime or abuse when they take time off for judicial proceedings or to seek medical attention or related relief for domestic violence, sexual assault, stalking or other crime that causes physical or mental injury.
- Review how paid leave policies may have changed due to COVID-19.
- Review time-off request procedures to indicate when time off can be required by the employer should sick employees need to be sent home (paid or unpaid).
- Review Kin Care to clarify that employees have the right to designate sick leave as kin care or not.
- Update to reflect relaxed attendance policies to encourage sick employees to stay home.
- Update attendance or scheduling policies to be more flexible for parents with child care challenges, or employees with other caregiver issues related to COVID-19.
- Physical distancing practices detailed to support a safe workplace.
- Employee health screening policies including temperature taking and the confidential handling processes of resulting records.
- Added policy and procedures for employees to report and how the employer will handle a positive COVID-19 case at the worksite.
- Procedures implemented for employee quarantine requirements due to symptoms or positive test results, including return-to-work procedures (two negative tests, 10 days after symptoms are gone, doctor’s note, etc.).
- Contact tracing practices implemented to help contain the spread of infection.
- Visitor policies updated with health screening practices.
- Travel policies updated to reflect essential versus nonessential travel and the impact of domestic or global travel restrictions.
- Quarantine policies added to address both business and personal travel, including pay arrangements when telecommuting is not possible.
- Telecommuting policies updated to reflect the type of work or specific positions that are able to be done remotely and the procedures for requesting telework.
- Added or updated policies on which telecommuting-related costs the employer will or will not cover.
- Information technology policies revised to reflect remote work hardware, software, and support.
Leap Solutions is a diverse group of highly skilled management, organizational development, and human resources, and executive search and recruitment professionals who have spent decades doing what we feel passionate about helping you feel passionate about what you do. Our HR specialists can help you get a handle on the ever-changing COVID-19 guidelines, programs, and legislation that may impact you and your employees. We are available to work with you to develop practical solutions and smart planning decisions for your organization’s immediate, near, and long-term needs.
To print this article, click here
Tracy Emmerich | April 2, 2020
Information and Resources to Empower Employers
During the COVID-19 Pandemic
During the current coronavirus pandemic, every day brings new data, concerns, and challenges regarding the spread of the virus, government messaging and directives, and economic and social impacts. Throughout, Leap Solutions remains dedicated to keeping our clients informed and empowered by delivering relevant, up-to-the-minute information and resources calmly, quickly and responsibly.
Our HR specialists are here to help you get a handle on the complexities of ever-changing guidelines, programs and legislation that may directly impact you and your employees as well as work with you to come up with practical solutions and smart planning decisions for your organization’s immediate, near and long-term needs.
Furloughs, Layoffs, Terminations
Decisions for Business Owners during the Coronavirus
There are many ways for a relationship between an employer and an employee to end. Layoff, Furlough, Reduction in Force or Discharged? What do they all mean?
A lay-off is due to conditions that are out of the employee’s control, such as a lack of work or the company’s financial situation. Sometimes, being laid off means that you still have a chance to be employed again if conditions improve. A layoff is a separation from payroll and employees are typically able to collect unemployment benefits while on an unpaid layoff. The employee should receive their final paycheck, including all accrued vacation/paid time off (PTO), on the date the employee is laid off.
A furlough (temporary layoff) is considered to be an alternative to layoff. When an employer furloughs its employees, it requires them to work fewer hours or to take a certain amount of unpaid time off, but the individual remains an employee. Any wages owed are paid on the regular pay dates. A furloughed employee may apply for unemployment for missed work hours. A furloughed employee will not be eligible for the expanded FMLA paid leave and paid sick leave when Families First goes into effect on April 1, 2020, until work becomes available.
A reduction in force (RIF) occurs when a position is eliminated without the intention of replacing it and involves a permanent cut in headcount. A layoff may turn into a RIF or the employer may choose to immediately reduce their workforce. The employee should receive their final paycheck, including all accrued vacation/ PTO, on the date of termination.
A discharge happens regardless of the financial situation of a company. Depending on the reason for the discharge, it can be permanent. A discharge can be done by an employer or employee depending on its type. Final pay, including vacation/PTO, is required on the employee’s last day of work.
- Voluntary discharge: Voluntary discharge means the employee resigns from a job. Life events that can lead to voluntary discharge include retirement, education, starting a new job, relocation or a medical condition. Employers should request a resignation letter from the employee.
- Involuntary discharge: Involuntary discharge means that an employer dismisses an employee from the company. Usually, the employee will receive a termination letter. An employer may choose to release an employee for reasons such as misconduct or unsatisfactory completion of job responsibilities.
- Mutual agreement: A mutual agreement is shared between an employer and an employee. In this case, the employee agrees to exercise the at-will clause in their employment agreement.
California WARN Act
The California Worker Adjustment and Retraining Notification (WARN) Act requires most employers with 75 or more employees to provide 60 calendar-day advance notification of plant closings and mass layoffs. A mass layoff is defined under the California WARN Act as
- The elimination of fifty (50) or more jobs during any thirty (30)-day period, due to lack of work or lack of funds.
- A relocation means moving all or substantially all of the commercial or industrial operations at a given location to a new location at least one hundred (100) miles away.
- A termination (plant closure) means the cessation or substantial cessation of industrial or commercial operations.
On March 17, 2020, Governor Gavin Newsom issued Executive Order N-31-20 which only suspends the California WARN Act’s 60-day notice requirement for those employers that satisfy the Order’s specific conditions. An employer seeking to rely on the Executive Order’s suspension of the California WARN Act’s 60-day advance notice requirement must satisfy the following three conditions:
- The employer’s mass layoff, relocation or termination must be caused by COVID-19-related “business circumstances that were not reasonably foreseeable at the time that notice would have been required.”
- The employer must provide written notices to:
- Employees affected by the mass layoff, relocation or termination;
- The EDD; the Local Workforce Development Board; and the chief elected official of each city and county government within which the termination, relocation, or mass layoff occurs.
- The employer must provide written notice that satisfies the following requirements:
- Give as much notice as is practicable (e., reasonably possible) at the time notice is given.
- Provide a brief statement as to why the 60-day notification period could not be met. Include the following information in the notice to each affected employee:
- A statement as to whether the planned action is expected to be permanent or temporary and, if the entire location is to be closed, a statement to that effect
- The expected date when the plant closing or mass layoff will commence and the expected date when the individual employee will be separated
- An indication whether or not bumping rights exist
- The name and telephone number of a company official to contact for further information
- The following statement: “If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at labor.ca.gov/coronavirus2019.”
- The notice may include additional information useful to the employees such as, if the planned action is expected to be temporary, the estimated duration, if known.
- Include the following information in the notices separately provided to the EDD, the Local Workforce Development Board, and the chief elected official of each city and county government within which the termination, relocation, or mass layoff occurs:
- Name and address of the employment site where the closing or mass layoff will occur.
- Name and phone number of a company official to contact for further information.
- A statement as to whether the planned action is expected to be permanent or temporary and, if the entire location is to be closed, a statement to that effect.
- Expected date of the first separation, and the anticipated schedule for subsequent separations.
- Job titles of positions to be affected, and the number of employees to be laid off in each job classification.
- In the case of layoffs occurring at multiple locations, a breakdown of the number and job titles of affected employees at each location.
- An indication as to whether or not bumping rights exist.
- Name of each union representing affected employees, if any.
- Name and address of the chief elected officer of each union, if applicable.
- The notice may include additional information useful to the employees such as, if the planned action is expected to be temporary, the estimated duration, if known.
Additional information and other resources are available at Labor & Workforce Development Agency – Coronavirus 2019 (COVID-19) Resources for Employers and Workers.
What are the implications for employers regarding the Families First Coronavirus Response Act as it relates to furloughs, layoffs, reduction in force, or discharge?
Prior to April 1, 2020
Employers who were forced to close their business made a decision to set their employees up to work from home or if that was not an option they sent their employees home to shelter in place. Employers who could not provide teleworking should have provided their employees with a letter or Change in Reporting Relationship letting them know which employment action (see above) was taken. Employers should also check in with their broker/insurance company to see how benefits can be handled during the shelter in place if employees are not able to work the required number of hours to maintain benefits. Employees who were laid off or furloughed with no hours are not eligible for the new paid sick leave or the Expanded Family and Medical Leave as this does not go into effect until April 1, 2020.
Employees should apply for unemployment benefits as soon as the employee was sent home as the one week waiting period has been waived. For faster and more convenient access to those services, employees are encouraged to use the online options. For more information please read How to Set Up a UI Online Account (DE 2338H) (PDF) to help you apply for benefits.
After April 1, 2020
After April 1, 2020, any employee still working, even if working reduced hours will be eligible for the new paid sick leave under the Emergency Paid Sick Leave Act and the Expanded Family and Medical Leave under the Emergency Family and Medical Leave Expansion Act. An employee laid off or furloughed with no scheduled hours would no longer be eligible for the paid sick leave or the expanded family and medical leave until working hours become available.
Unemployment Insurance is a joint state-federal program that provides cash benefits to eligible workers who are unemployed through no fault of their own. In general, benefits are based on a percentage of the employee’s earnings over a recent 52-week period. Typically, there is a one-week waiting period for individuals obtaining unemployment insurance; however, the Governor’s Emergency Proclamations waives the non-payable one-week waiting period to eligible individuals affected by the current COVID-19 disaster. Also, The Coronavirus Aid, Relief, and Economic Security (CARES) Act includes a significant expansion of unemployment benefits that would extend jobless insurance payments by 13 weeks. CA weekly UI benefit amount can range from $40 to $450 per week. CARES also includes a temporary four-month enhancement of benefits (ends July 31, 2020), called Federal Pandemic Unemployment Compensation (FPUC), which would boost the maximum unemployment benefit by $600 per week in addition to, and in the same timeframe as, regular state or federal unemployment benefits.
The CARES Act also extends unemployment insurance to workers who usually aren’t eligible for such benefits at the state level—so long as their unemployment is connected to the coronavirus outbreak. Those who will now be eligible include part-time employees, freelancers, independent contractors, gig workers, and the self-employed.
In addition to full unemployment benefits, employers may also be eligible for other state programs:
Partial claims are for employees whose employers want to keep them when there is a lack of work. A partial Unemployment Insurance claim can be used for any claimant who works less than their normal full-time hours, and whose employers want to keep them. Employers should download Notice of Reduced Earnings (DE 2063) (PDF), complete the top section. These forms need to be done on a weekly bases, Sunday – Saturday regardless of your payroll schedule. Once completed, the employer should forward the form to their employees to complete the claim and submit it to EDD. For more information, visit Partial Claims.
Work Sharing Program
Employers can apply for the Unemployment Insurance (UI) Work Sharing Program if reduced production, services, or other conditions cause them to seek an alternative to layoffs. The Work Sharing Program helps employees whose hours and wages have been reduced. To participate, employers must meet all of the following requirements:
- Be a legally registered business in California.
- Have an active California State Employer Account Number.
- At least 10 percent of the employer’s regular workforce or a unit of the workforce, and a minimum of two employees, must be affected by a reduction in hours and wages.
- Hours and wages must be reduced by at least 10 percent and not exceed 60 percent.
- Health benefits must remain the same as before, or they must meet the same standards as other employees who are not participating in Work Sharing.
- Retirement benefits must meet the same terms and conditions as before, or they must meet the same as other employees not participating in Work Sharing.
- The collective bargaining agent of employees in a bargaining unit must agree to voluntarily participate and sign the application for Work Sharing.
- Identify the affected work units to be covered by the Work Sharing plan and identify each participating employee by their full name and Social Security number.
- Notify employees in advance of the intent to participate in the Work Sharing program.
- Identify how many layoffs will be avoided by participating in the Work Sharing program.
- Provide the EDD with any necessary reports or documents relating to the Work Sharing plan.
- Leased, intermittent, seasonal, or temporary service employees cannot participate in the Work Sharing Program.
- Corporate officers or major stockholders with investment in the company cannot participate in the Work Sharing Program.
- The Work Sharing Program cannot be used as a transition to a layoff.
For more information, visit Work Sharing.
If your business is directly affected by COVID-19, you can request up to a 60-day extension to file your state payroll reports and deposit state payroll taxes without penalty or interest. Include the impact of COVID-19 in your written request for the extension. Your request must be received within 60 days from the original past-due date of the payment or return.
Healthcare Coverage during the Coronavirus
Employers may be looking to reduce employee hours or mandate time off for (i.e. furlough) a part of their workforce due to the economic impact of the coronavirus (also known as COVID-19).
Employers may want to continue providing benefits for these employees; however, the issue an employer may face is that their benefit plan documents usually require employees to be “actively at work” and working full-time hours (e.g. 30) to be covered by the benefit plans. This means that employees who have their hours reduced or who are furloughed (even temporarily) will not be active full-time and will often have their benefits terminated after a period of time.
Employers should take the following steps to ensure compliance with their health and welfare benefit plans when providing benefits continuation:
- Review plan documents to determine requirements regarding employee eligibility and benefits continuation during unpaid/unprotected leaves of absence;
- Consider the need to amend any plan documents to accommodate new eligibility requirements (including any furlough benefits continuation policy) upon approval from all relevant carriers;
- Communicate any new requirements to employees via either a summary of the plan modification or by updating the eligibility rules in your wrap summary plan description (if approved by all relevant carriers); and
- Provide COBRA continuation coverage to employees who lose coverage due to a COBRA qualifying event.
For instance, your insurance plan may have a 30-day grace period when someone is not working full-time or a shift in their work status. What options are available after April 30, 2020? This is a key question to ask your insurance provider to ensure your employees either have coverage or can be provided COBRA continuation, which applies for employers with 20 or more employees. If less than 20 employees, Covered California may be the best option.
Regarding employer payment of health care insurance premiums, as of March 18, 2020, the State of California has requested that all insurance companies provide their insureds with at least a 60-day grace period to pay insurance premiums, so insurance policies are not canceled for nonpayment of premium.
- Applies to all admitted and non-admitted insurance companies that provide any insurance coverage in California.
- Requests that all insurance agents, brokers, and other licensees take steps to ensure customers can make prompt insurance payments.
In the great news category for individuals finding themselves without medical coverage during the coronavirus, the State of California has reopened enrollment for Covered CA through June 30, 2020. Go to https://www.coveredca.com/individuals-and-families/getting-covered/special-enrollment/ for important information on what is available to Californians.
Leap Solutions is always here and ready to support you as you support your employees during these unprecedented times. Together, we can confidently address the issues and concerns at top of mind and respond to this continually evolving situation from a place of assuredness and strength.
Click here to print this newsletter