On April 7, 2020, the Department of Industrial Relations (“DIR”) issued 10 FAQs on laws the Labor Commissioner enforces in light of COVID-19. https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm Here are the highlights of those FAQs.
Employees can use PSL due to COVID-19. California-mandated Paid Sick Leave (“PSL”) is available for absences due to illness, diagnosis, care or treatment of an existing health condition. It is also available for preventative care. The DIR says self-quarantining qualifies when recommended by civil authorities. However, you can’t inquire as to the reason for an employee’s use. Therefore, we recommend permitting the use of PSL for self-quarantine or any “preventative” measure regardless of any justification provided by the employee.
The employer cannot compel the use of PSL during a quarantine. The DIR reminds employers that only an employee determines when and how much PSL to use. My recommendation is to consider disciplinary measures when an employee is away from work unexcused. PSL, company-provided sick leave, vacation and PTO are all available for an employee’s use. If the employee chooses to be absent and does not use a permitted leave, I consider the leave to be unauthorized, subjecting the employee to discipline.
An employee may qualify for school-related leave as schools and daycare facilities are closed. Labor Code § 230.8 provides employees at a worksite with 25 or more employees up to 40 hours of leave per year to address a “school emergency” which includes the closure of a school or daycare facility. Also, don’t forget that under the Families First Coronavirus Response Act, an employee may be entitled to 12 weeks of time off with pay when a school or daycare facility is closed due to COVID-19 concerns. (See our March 24, 2020 discussion of the FFCRA – Emergency Family and Medical Leave Expansion at http://flclaw.net/2020/03/families-first-coronavirus-response-act-emergency-family-and-medical-leave-expansion)
An employee is entitled to reporting time pay if sent home early. For a regular 8-hour shift, an employee sent home early is entitled to compensation for four hours, even though the employee worked less than four hours. Reporting time pay is not required if there is a state of emergency and civil authorities recommend that businesses cease operations.
Exempt employees are generally entitled to a full-week of salary if they perform any work in the workweek. That is the definition of a salary – the employee’s compensation is not dependent upon the number of hours worked. Moreover, an employee is entitled to a full salary if the employer failed to make work available. But if the employee performed no work in the workweek when work was available, the employee is not entitled to any salary for that workweek.
Deductions from salary for a full-day absence for personal reasons other than sickness is permissible. A deduction for a partial-day absence for personal reasons or sickness are not permitted. However, an employer may deduct from an employee’s sick leave or vacation balance.
Issues related to deductions from the salary of an exempt employee are complicated. Exercise care to ensure you are calculating pay, sick leave and vacation leave correctly.
Consult with legal counsel as necessary to address pay issues. The most common type of workplace litigation today is for alleged wage and hour violations. Errors in pay can result in double damages, civil penalties and attorneys’ fees that dwarf the unpaid wage. California’s wage and hour enforcement system is draconian and can cause significant harm to the viability of a business.
Douglas M. Larsen can be reached at [email protected] or (559) 256-5000