Facing COVID-19’s unfolding (sur)realities, LA City, LA County, Pasadena and Riverside County, among other local California public health authorities, have ordered that wear-a-mask and six-foot distance “recommendations” are now mandatory whenever possible for workers at essential businesses.

Effective April 10, a City of Los Angeles Worker Protection Order requires all workers from legally operating businesses to “wear face coverings over their noses and mouths while performing their work.” This LA City order requires employers to provide “fabric coverings, such as scarves and bandanas” to be discarded properly if single use or washed at least once daily if not. It also mandates that customers and visitors wear masks and permits such businesses to deny access to any who do not. Those businesses must also facilitate employee hand washing or sanitizer use at least every 30 minutes, as well as supply proper, sanitized restrooms, and cleaning products. Additionally, the LA City order requires all such businesses to implement social distancing for employees, as well as customers and visitors.

The LA City Order goes further: by midnight April 15, 2020 essential businesses must adopt and post near their entrances a “Social Distancing Protocol” for every facility they operate, a sample provided in Appendix A to the order.

Referencing that same Appendix A, Los Angeles County through an April 10 revised Safer-at-Home Order has the same notice posting requirement, as does Pasadena, through its April 11 Revised Order for Control of COVID-19. Affected employers also must give copies of that Social Distancing Protocol to their employees and furnish implementation evidence of that applicable order if any authorities inquire.

LA County’s and Pasadena’s orders mandate that essential businesses provide cloth face coverings to employees and contractors if their “duties require close contact with other employees and/or the public,” and define close contact as “within 6 feet of someone else for at least 10 minutes.” They require members of the public entering a business to wear face coverings as well.

Riverside County’s amended April 6, 2020 Order requires that all operating essential businesses identify and adopt needed measures to “implement social distancing.” The county now requires: “All persons, including Essential Workers, shall wear face coverings, such as scarves (dense fabric without holes), bandanas, neck gaiter, or other fabric face coverings.” The Riverside Order also discourages non-medical use of “Personal Protective Equipment . . . such as N95 masks.”

These orders also variously require measures such as limiting number of public entering a business, marking six-foot intervals when lines will form, providing sanitizing products at entrances, regular disinfecting of “high-touch surfaces,” and other steps to prevent spread of COVID-19.

Any businesses whose employees are required to wear face coverings at work must either supply the coverings or reimburse the cost of the face coverings as a business expense.

The only thing constant on this largely uncharted legal landscape is change. We will shortly bring you further local “flatten the curve” updates statewide.

See also:

• COVID-19 Safety Nets; Overview of CARES Act Small Business Loans (April 14, 2020)
• Port in a Storm; Our Webinar on Workplace COVID-19 Realities (April 10, 2020)
• It’s a Wash; COVID-19 Paid Leave and Tax Credits (April 9, 2020)
• When the Show Must Go On; Key Protection for an Employee’s COVID-19 Diagnosis/ Symptoms (April 8, 2020)
• Safer at Home; California’s Coronavirus Response, Statewide and Local April 3, 2020 Current Status (April 3, 2020)
• COVID-19 Gets Noticed (April 2, 2020)
• Unemployment Goes Viral; Furlough or Layoff, Distinction without a Difference? (March 28, 2020)
• Workplace Safety Nets; The Coronavirus Outbreak and California Unemployment Benefits (March 27, 2020)
• Federal Coronavirus Workplace Relief (March 23, 2020)

For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
April 15, 2020

On March 27, 2020, President Trump approved The Coronavirus Aid, Relief, and Economic Security (CARES Act), a $2 trillion relief package intended to protect small business from the economic impacts of COVID-19.

Some media have overstated CARES Act business loans as “free money” or “fully forgivable.” Enterprise owners should proceed with caution, do their homework, and not automatically assume any of these four loan types will be fully forgiven:

CARES Act Paycheck Protection Program (PPP). The PPP loan is intended to help small businesses keep their workers on the payroll. Treasury Department guidelines confirm collateral or personal guarantees are not required. The loan currently has a maturity of two years and a 1% interest rate. Applicants apply for the loan through a banking institution or credit union. Businesses receiving a PPP loan may not also claim Employee Retention Credits (i.e., tax-refundable credits equal to 50 percent of qualified wages paid after March 12, 2020 and before January 1, 2021 up to a specified maximum amount).

The Small Business Administration (SBA) will forgive a portion of the PPP loan proceeds if the business can retain or restore its average pre-pandemic number of employees and the money is used for payroll and most rent, mortgage interest and/or utilities expenses over the eight weeks from loan funding. The SBA has announced it will publish further guidance on the loan forgiveness component in the coming week or so.

These links provide further information on the PPP program, leading to application forms:

• https://www.uschamber.com/sites/default/files/023595_comm_corona_virus_smallbiz_loan_final.pdf
• https://home.treasury.gov/policy-issues/top-priorities/cares-act/assistance-for-small-businesses

Economic Injury Disaster Loan (EIDL). Small businesses that apply for an EIDL loan can request an immediate advance of up to $10,000 to offset a temporary loss of revenue. Applicants may apply directly on the SBA’s website. The loan advance does not have to be repaid even if the loan is denied. However, if the business also obtains a PPP, the PPP loan forgiveness will likely decrease by the $10,000 EIDL advance, and the EIDL and PPP loans may not be used for identical payroll expenses. Click on this link for more information:

• https://www.sba.gov/funding-programs/loans/coronavirus-relief-options/economic-injury-disaster-loan-emergency-advance

Express Bridge Loan (EBL). The EBL permits small businesses with pre-existing SBA “Express Lender” relationships to quickly access up to $25,000 to help overcome the temporary loss of revenue. For example, if an enterprise urgently needs cash while waiting for EIDL approval and disbursement, it may qualify for this bridge loan, to be repaid in full or in part by the EIDL loan proceeds. For more information, please click here.

SBA 7(a) Loans (Standard and Express Loans). This is the SBA’s longstanding program for providing small businesses with financial assistance. Please click on this link for more information.

Best practices include:

• Promptly consult with a CPA or other tax advisor before taking out a loan
• Always ensure the business can repay any loans under the terms stated
• Fill out all applications truthfully and accurately
• Promptly notify the lender of any inadvertent errors
• Carefully document the use of all loan proceeds and consider segregating the funds in a separate account, especially if the business will be seeking any loan forgiveness

See also:

• It’s a Wash (April 10, 2020)
• When the Show Must Go On; Key Protection for an Employee’s Covid-19 Diagnosis/ Symptoms (April 8, 2020)
• Safer at Home (April 3, 2020)
• COVID-19 Gets Noticed (April 2, 2020)
• Unemployment Goes Viral; Furlough or Layoff, Distinction without a Difference? (March 28, 2020)
• Workplace Safety Nets (March 27, 2020)
• Federal Coronavirus Workplace Relief (March 23, 2020)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
April 14, 2020

With an estimated 95% of America's residents, some 306 million people, now under some form of “stay home,” “safer at home,” “shelter in place” order, employers face unprecedented (sur)realities, ranging from the sudden need for workforce reduction, blanket layoffs and furloughs, hastily constructed COVID-19 driven unemployment benefit alternatives, and the rapidly emerging and sometimes conflicting interpretations of the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security (CARES) Act.

We undertake to survey this wave of new laws and their applications in a 53-minute webinar Employment, Payroll, Leaves and Benefits in a COVID-19 World, produced by ePractice Manager, a leading dental practice management firm partnered with Nobel Biocare and the Texas Dental Association among others.
Short of an hour, we take on:

• Workplace reorganization, including telecommuting/teleworking;
• Workforce contagion and infection prevention under the Americans with Disabilities Act;
• Furloughs and layoffs;
• Unemployment benefits issues; and
• Payroll relief and paid leaves, including the FFCRA and the CARES Act.

Viewing is without charge. As follow-up for participants, we provide no-charge the session’s PowerPoint panel set and other materials on email request.

Big thanks to ePractice Manager for the broad platform on which to present this vital information.

Please take advantage. “Knowledge is power” may be cliché but true.

Tim Bowles
April 10, 2020

As reported in Federal Coronavirus Workplace Relief (March 23) and COVID-19 Gets Noticed (April 2) the March 18 Families First Coronavirus Response Act (FFCRA) requires most employers with fewer than 500 on payroll to provide paid sick and family leave wages for certain COVID 19-related absences.

The FFCRA includes employer tax credits to fully offset qualified leave amounts paid between April 1 and December 31, 2020, including an employer’s share of Medicare tax and its cost of maintaining absent workers’ health insurance coverage.

On March 31, 2020, the Internal Revenue Service published frequently-asked questions (FAQs) on steps to obtain these credits.

FAQ Nos. 12-13 and 37-43 detail how eligible employers can claim the credits on federal employment returns, including IRS Form 941.

Employers may reimburse themselves more quickly by drawing from their federal employment tax set-asides to matching leave pay-outs, claiming any remaining difference as a credit on a future return. See, Form 7200, Advance Payment of Employer Credits Due to COVID-19. Form 7200 Instructions include helpful background information and examples.

See also:

• When the Show Must Go On; Key Protection for an Employee’s Covid-19 Diagnosis/Symptoms (April 8, 2020)
• Safer at Home (April 3, 2020)
• Unemployment Goes Viral; Furlough or Layoff, Distinction without a Difference? (March 28, 2020)
• Workplace Safety Nets (March 27, 2020)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
April 9, 2020

As of April 7, all but five states (the Dakotas, Nebraska, Iowa, and Arkansas) have some form of COVID-19 “safer at home” orders in place. For those businesses permitted or directed to stay open as part of the 16 federally-designated “critical infrastructure” sectors, management faces the critical responsibility of balancing production with protection.

While government entities hastily continue to issue voluminous guidelines on an operating employer’s do’s and don’ts (see, Infection Protection, What Employers Can Ask in a Pandemic, “Infection Article,” March 25, 2020), overlapping federal, state and local agencies are thus far answering the most sensitive questions differently, if at all. Thus, it’s all the more important that management promptly adopt and apply policy that reflects sound judgment under these unprecedented conditions.

Those policies should address requirements for the more-stringent isolation of confirmed and suspected COVID-19 cases and the less-severe quarantine of those with exposure, actual or possible, to such cases.

Who Must Be Isolated from a Still-Operating Company?: All government levels acknowledge that an individual who has, “may have” or is “likely to have” COVID-19 should follow stringent isolation guidelines. For instance, Los Angeles County Department of Public Health (LACDPH) “Home Isolation Instructions” include a strict “stay home” standard, separation from one’s family and pets at home, avoiding shared bedding, eating utensils, etc.

However, just who is an isolation candidate will remain vague as long as guidance from the Centers for Disease Control is indefinite on the full range of COVID-19 symptoms. As of March 24, the CDC acknowledged: “Limited information is available to characterize the spectrum of clinical illness associated with coronavirus disease 2019 (COVID-19) … Most patients with confirmed COVID-19 have developed fever (may be subjective or confirmed) and/or symptoms of acute respiratory illness (e.g., cough, difficulty breathing).” Emphasis supplied.

For lack of any definitive list, best employer practice would include a written protocol which lists qualifying symptoms for isolation as those published by an official source, whether or not such COVID-19 symptoms overlap with other ailments such as cold, flu or allergies. See, e.g., the Kansas Department of Health and Environment comparison chart. (Note that the CDC currently publishes only a generic chart comparing “flu” and “common cold,” nothing as yet for COVID-19 comparison.)

Who Must Be Quarantined from an Operating Company?: All government levels concur that a person who has been in “close contact” with another who has, “may have” or is “likely to have” COVID-19 should follow somewhat less stringent quarantine guidelines. The LACDPH “Home Quarantine Guidance” includes staying home except for required medical care for 14 days.

However, just who is a quarantine candidate depends on which government guidance one choses to rely upon for the definition of “close contact.”

As of yesterday, April 7, the CDC “close contact” definition is: “(a) being within approximately 6 feet (2 meters) of a COVID-19 case for a prolonged period of time; close contact can occur while caring for, living with, visiting, or sharing a health care waiting area or room with a COVID-19 case; or (b) having direct contact with infectious secretions of a COVID-19 case (e.g., being coughed on). Emphasis supplied. This directive defines neither “approximately” nor “prolonged.”

The LACDPH “close contact” definition is: “(a) being within six feet for more than ten minutes; or (b) unprotected direct contact to secretions or excretions (for example, sneeze, cough, sweat) of a person diagnosed or who are likely to have COVID-19.” Emphasis supplied. However, this LA county directive fails to explain whether that “more than ten minutes” is precise time down to one second beyond ten minutes or is ten-minutes consecutive, cumulative, or both.

For lack of any definite, consistent “close contact” standard from the government, best employer practice would include a written protocol which “errs” on the side of caution, i.e., once there is any question of contact within six feet for anything other than a fleeting pass-by, judgment should be exercised in the favor of quarantine.

What Must Operating Companies Do to Limit Spread After a Worker’s COVID-19 Diagnosis or Symptoms?: As explained in the Infection Article, the extraordinary current circumstances have led the Equal Employment Opportunity Commission (EEOC) to re-issue and update a guidance greatly relaxing employer prohibitions on inquiries on worker illness symptoms and related conditions. However, once management of a still-operating business is on notice of an employee who must isolate or quarantine, the question of who and how to ask for co-worker “close contacts” is one that even the EEOC has not yet progressed to address.

The issue is how far an employer can or should go to notify and protect other workers and their families of possible workplace exposure to the disease notwithstanding the privacy rights of the worker afflicted with COVID-19 or its reported symptoms. For lack of government direction to date, best practice would include a written protocol that seeks the subject worker’s written consent: (a) to disclose to management all fellow employees with whom he/she has had close contact while having any COVID-19 symptoms; and (b) to management’s identification of that employee in its inquiries to company employees to determine who, if any, have had such close contact with the person.

See also:

• “Safer at Home, California’s Coronavirus Response Statewide and Local (April 3, 2020)
• Covid-19 Gets Noticed (April 2, 2020)
• Unemployment Goes Viral; Furlough or Layoff, Distinction without a Difference? (March 28, 2020)
• Workplace Safety Nets (March 27, 2020)
• Federal Coronavirus Workplace Relief (March 23, 2020)
• Holding Firm (March 19, 2020)

Our firm is currently advising a wide range of employer clients on the development of critical policies and procedures that enable continued delivery of essential goods and services while protecting workers from unnecessary exposure to possible COVID-19 infection. For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
April 8, 2020

Welcome to our new pandemic-driven world, evolving daily.

On March 19, 2020, California Governor Gavin Newson issued Executive Order N-33-20 requiring all California residents until further notice to stay at home or place of residence except for those in businesses and functions deemed essential to 16 federally-designated “critical infrastructure” sectors.  See, Essential Critical Infrastructure Workers.  In essence, the governor directed:

“The supply chain must continue, and Californians must have access to such necessities as food, prescriptions and health care. When people need to leave their homes or places of residence, whether to obtain or perform the functions above, or to otherwise facilitate authorized necessary activities, they should at all times practice social distancing.”

The state is constantly updating its “COVID Response – Stay Home Except for Essential Needs FAQs” for further guidance.

Many California cities and counties have implemented similar – and in many instances progressively stricter -- “Safer at Home” or “Shelter in Place” orders. To our knowledge, there is as-yet no comprehensive online resource listing all of these.  As of April 3:

Effective March 25, 2020,  Los Angeles County’s Department of Public Health issued rules for “isolation” (people infected or “likely” infected [showing symptoms]) and another set for quarantine (people in “close contact” [within six feet for more than ten minutes or in direct contact, e.g. sneeze, cough, sweat]) with someone infected or likely infected.

As applies to your locale, it is important to click the above links for updates, as requirements, dates, and information are changing frequently.

See also:

• Covid-19 Gets Noticed (April 2, 2020)
• Unemployment Goes Viral; Furlough or Layoff, Distinction without a Difference? (March 28, 2020)
• Workplace Safety Nets (March 27, 2020)
• Federal Coronavirus Workplace Relief (March 23, 2020)
• Holding Firm (March 19, 2020)

For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
Daniska Coronado
April 3, 2020

As reported in “Federal Coronavirus Workplace Relief,” the March 18 Families First Coronavirus Response Act (FFCRA) contains two nationwide employee leave laws, the Emergency Paid Sick Leave Act (PSL Act) and the Emergency Family and Medical Leave Expansion Act (EFMLA). In essence and applicable to businesses with fewer than 500 employees:

• The PSL Act requires 80 hours of paid sick leave for full-time employees and two weeks of average hours worked for part-time employees who cannot work or telework for five COVID-19-related reasons (including gov’t quarantine, self-quarantine, child care on school closure); and
• The EFMLA amends the Family and Medical Leave Act (FMLA) to permit up to 12 weeks of leave for an employee to care for a minor check due to COVID-19 related school or day care closure; paid leave after the first ten work days (rate not less than 2/3rds regular pay $200/day; $10,000 total caps); unpaid leave for the remainder of the 12 week period.

Posting Requirements. Starting April 1, 2020, all covered employers are required to distribute and post the government’s FFCRA Employee Rights notice (pictured above) in a conspicuous place where employees can read it easily. For employees working remotely, best management practices should include promptly emailing each worker the notice link.

Resources for Workers and Employers. The Department of Labor Wage and Hour Division (DOL) has now created a COVID-19 and the American Workplace Portal to assist workers and employers in understanding employment related issues under COVID-19. The portal includes numerous resources:

• Fact sheet: Families First Coronavirus Response Act: Employee Paid Leave Rights (PDF)
• Fact sheet: Families First Coronavirus Response Act: Employer Paid Leave Requirements (PDF)
• Families First Coronavirus Response Act: Questions and Answers
• COVID-19 and the Fair Labor Standards Act: Questions and Answers
• COVID-19 and the Family and Medical Leave Act: Questions and Answers
• Poster (as above): Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act (FFCRA)
• Poster: Federal Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act (FFCRA)
• Poster: Families First Coronavirus Response Act Notice – Frequently Asked Questions

See also:

• Unemployment Goes Viral; Furlough or Layoff, Distinction without a Difference? (March 28, 2020)
• Workplace Safety Nets (March 27, 2020)
• Infection Protection; What Employers Can Ask in a Pandemic (March 25, 2020)
• Federal Coronavirus Workplace Relief (March 23, 2020)
• Holding Firm (March 19, 2020)

For more information about these developments or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
April 1, 2020

The Coronavirus crisis has forced many employers to reduce or eliminate their work force for the foreseeable future.

Some employers are characterizing such action as a temporary “furlough.” Others are framing such action as a “lay off” for the time being, until the calamity passes. Yet, for California businesses forced to cut back under the current health emergency, is there really a difference between the two? Answer: it depends.

Typically, a “furloughed” worker:

• remains the company’s “active” employee (although not actually working)
• maintains his/her seniority
• and, depending on the employer’s workplace policies and plans, continues to receive any applicable vacation/PTO benefits, health coverage, and retirement plan benefits

On the other hand, an employee temporarily laid off is considered no longer with the company and must be formally reinstated with new hire paperwork. Unlike a “furloughed worker,” the laid-off employee must receive all final wages immediately on the last date of employment, including accrued unused vacation or paid time off (PTO) hours. An employer’s failure to do so triggers additional “waiting time penalties” until full wages are paid in an amount equal to the employee’s daily regular rate up to a total of 30 calendar days.

However, the California Division of Labor Standards Enforcement (DLSE) imposes one key requirement for an employer to maintain the distinction. Unless management specifies a “furloughed” worker’s return-to-work date that is within that person’s current pay period or within ten days, whichever is shorter, management must pay that employee all wages on his/her last day regardless of how the company characterizes the departure, furloughed or laid-off.

See also:

• Workplace Safety Nets (March 27, 2020)
• Federal Coronavirus Workplace Relief (March 23, 2020)
• Holding Firm (March 19, 2020)

For further information on how to properly conduct furloughs or layoffs or any other Coronavirus workplace concerns, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
March 28, 2020

The evolving COVID-19 crisis is driving many employers to the difficult decisions of reducing hours or laying off employees.

California has in turn relaxed the unemployment insurance (UI) access and qualification standards significantly. This includes the governor’s elimination of the usual seven-day waiting period upon application. Further, if the employer would offer to rehire within the coming two weeks if conditions permitted, the workers need not show the EDD that they are actively looking for other work in order to qualify. Eligibility still requires employees to remain able, available and ready to work. See, EDD - Coronavirus 2019 (COVID-19) and EDD Unemployment Eligibility.

An employer who knows layoffs will only last two weeks or less can offer employees special short-term “reduced earnings” benefits by issuing an Form DE 2063 to each affected worker. See also, that form’s completion instructions. To be eligible, the employee’s gross earnings after deducting the first $25 or 25% of the total earnings must be less than her/his weekly UI benefit amount. If the employee is then not reinstated within those two weeks, he or she would have to apply regularly for UI benefits.

California employers seeking a flexible alternative to layoffs may apply for the EDD’s Work Sharing Program (WPS), permitting management to retain their workers by reducing hours and partially offsetting the reduced wages with UI benefits.

The WPS guide permits the employer to determine which employees will participate and to rotate who shall have reduced hours and wages each week. The employer can also determine which week(s) will have such hour and wage reductions.

See also:

• Infection Protection (March 25, 2020)
• Federal Coronavirus Workplace Relief (March 23, 2020)
• Holding Firm (March 19, 2020)

For further information on unemployment insurance benefits or any other Coronavirus workplace concerns, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
March 26, 2020