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Coronavirus / COVID Employment Law Updates for California Employers # 19

by D. Gregory Valenza | | Aug 17, 2020

Here is installment #19 of our ongoing series of COVID-related posts.

California Department of Industrial Relations Safe Reopening Guidance

The California Department of Industrial Relations as issued guidance for employers on “Safe Reopening” here.  This document, in FAQ format, addresses some helpful issues and links to other resources.  It’s worth checking out.  Among the topics discussed:

  • requiring face coverings and who pays for them;
  • requiring customers to wear face coverings;
  • what to do when employees are exposed to the virus;
  • employers’ obligations to protect workers from others who are infected;
  • employees’ rights when they believe employers are not implementing safe practices;
  • employers must pay for time spent on temperature checks (!);
  • employers must not require liability waivers from employees;
  • and more

District Court Ruling May Invalidate Some FFCRA Leave Regulations

A New York District Court held that some of the US Department of Labor’s emergency regulations implementing the “Families First Coronavirus Response Act” paid sick leave / extended FMLA laws were invalid. This is one district court ruling which may be appealed to the Second Circuit.  However, the ruling opens a can of worms because other courts may follow the ruling and it leaves open a lot of legal issues. The key issues for most employers are:

  • Contrary to DOL’s regulation, FFCRA leave is available to employees even if the employer did not have work available (if the employee was temporarily furloughed when the need for leave arose).  This is perhaps the most impactful part of the ruling for employers covered by FFCRA.
  • The DOL’s definition of “healthcare provider” was too broad for the district court;
  • Covered employees may take “intermittent” extended FMLA under the FFCRA without employer permission;
  • Employees were not required to submit documentation justifying leave in advance of taking leave when not practicable.

An article explaining the Court’s ruling in greater detail is here.  The district court’s opinion is here.

Again, it is not clear that California employers are bound by this ruling as of now. Also, DOL may appeal, or change its regulations, or acquiesce to the ruling.  So, stay tuned.

Paycheck Protection Program 

The Small Business Administration issued some FAQs on the Paycheck Protection Program or PPP loan forgiveness component. Those employers who received PPP loans may qualify for forgiveness of all or a part of the loan balance if they qualify and timely apply. The FAQs are available for review here.

Executive Orders re Payroll Taxes

We are not tax lawyers, but the President signed an Executive Order permitting employers to defer payment of a portion of “payroll taxes” that normally are withheld from employee paychecks. You can read that here.

The idea is to temporarily increase employees’ take-home pay by reducing withholdings this Fall.  Employers apparently are not required to defer the withholding, though.  As of right now, they will have to eventually withhold the money and pay it over.  The deferral applies only to employees who earn $4,000 or less bi-weekly.

So, this is an area that requires careful consideration, discussion and coordination with tax professionals / payroll companies. Be careful out there.


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