In addition to considerations under federal law, employers with employees in California should consider additional wage and hour issues that are unique to California. The Labor Commissioner’s Office has issued an FAQ to provide guidance on issues related to COVID-19.
If an exempt salaried employee performs any work during the week, that employee should be paid their salaried wage for the entire week. An employer’s obligations for non-exempt employees, however, are more specific. While generally, employers are not required to pay non-exempt employees for hours not worked, there are certain circumstances under California law when employers may have to pay non-exempt employees even for time not worked.
Paid sick leave
According to guidance from the Labor Commissioner, employers may not require that employees utilize available paid sick leave they have earned if they choose to take time away from work. If an employee chooses to use sick leave, the employer may, according to the Labor Commissioner, require that they take a minimum of two hours of paid sick leave per day.
The Labor Commissioner has also advised that if an employee has self-quarantined, they may be permitted to use paid sick leave because self-quarantine may qualify as preventative care if the individual has been potentially exposed to COVID-19 or has traveled to a high risk area. Further, an employee may use paid sick leave for time off from work due to COVID-19, including the diagnosis, care or treatment of COVID-19 for the employee or a family member.
California’s state-wide Paid Sick Leave law does not require that employers allow employees to use paid sick time to care for a child in the event of a school closure. However, under California Labor Code section 230.8, employees may use up to 40 hours a year for “child-related activities” including “child care provider or school emergency” which is defined to include “closure or unexpected unavailability of the school or child care provider.” Under section 230.8, employees “shall utilize existing vacation, personal leave, or compensatory time off” or “utilize time off without pay for this purpose, to the extent made available by his or her employer.”
Further, San Diego’s local Paid Sick Leave law does allow eligible employees to use earned sick leave if to care for a child “whose school or child care provider is closed by order of a public official due to a Public Health Emergency.”
Reporting time pay
California law requires that employers pay reporting time pay when an employer ends an employee’s shift before it is halfway completed. If the employee has worked more than half the scheduled shift, then the employee is simply paid for the hours they have worked. If the employer sends the employee home before working half the scheduled shift, even for suspected illness, then the employee must be paid for half the usual or scheduled day’s work, but in no event for less than two hours nor more than four hours, at their regular rate of pay.
If, however, the employer’s operations cannot begin or continue when civil authorities recommend that work not begin or continue – like for public health reasons – then employers are not obligated to pay employees for reporting time. Although Governor Newsom has declared a state of emergency in California in response to the coronavirus, the declaration serves to mobilize the state and local government to combat the virus but does not include an advisory to close workplaces. Employers should closely monitor advisories from state and local officials to determine whether there has been a recommendation that work not begin or continue.
Predictive scheduling laws
While there is no statewide predictive scheduling legislation, two cities in California – San Francisco and Emeryville – have such laws for employers in certain industries, like retail. Both cities require employers to pay employees for changes to their schedule on short notice. However, both San Francisco’s Formula Retail Employee Rights Ordinances (FRERO) and Emeryville’s Fair Workweek Employment Standards (FWES) have an exception to the predictability pay requirement if the employer’s operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue. The exception to FWES also includes schedule changes due to threats to the employer. Importantly, the exceptions under FRERO and FWES do not require that authorities shut down a workplace, but rather leave the door open for employers to make the decision as to whether operations can continue or if a shutdown is necessary due to threats to employees. In light of current events, like the World Health Organization’s declaration on March 11, 2020 that COVID-19 is a pandemic, employers subject to these laws may be able to invoke these exceptions to avoid predictive scheduling pay if they choose to close the workplace for the safety of the employees.
Reimbursements for reasonable business expenditures
While allowing employees to work from home is an option many employers may consider as a prophylactic measure to avoid the spread of the virus, employers should consider the implications of requiring employees to work from home. California Labor Code section 2802 requires employers to reimburse employees for “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer.”
Reimbursement obligations likely are not triggered if the employer simply provides employees with the option to work from home, but if an employer requires an employee who does not typically work from home to do so, the employer may have to reimburse the employee for certain reasonable expenditures. For example, if the employer requires an employee to work from home and that employee must be reachable if they are working from home, that employee may need to be compensated for the use of their personal phone under Labor Code section 2802. Similarly, if an employee must log in remotely on their home internet in order to complete work, employers may need to reimburse the employee for at least a portion of the home internet plan.
However, if an employee voluntarily self-quarantines, employers arguably do not need to pay for any marginal costs as a result of the employee’s remote work because the employer did not require that the employee perform any work outside of the workplace using personal devices or services.