FREQUENTLY ASKED QUESTIONS ABOUT COVID-19 AND THE WORKPLACE—GUIDANCE FOR EMPLOYERS
Last updated: August 14, 2020
As the United States and the rest of the world take measures to prevent the spread of the novel coronavirus, many people are facing uncertainty and disruption in their lives. In particular, questions about sick leave, working remotely, and other related issues are becoming increasingly common as more and more workplaces adjust business operations. Although most real estate salespersons are independent contractors under California law, real estate brokerage firms and associations may have staff such as administrative assistants and others who are employees. This article aims to provide guidance on California and federal labor and employment issues that may arise as we navigate this public health crisis.
Table of Contents:
The federal government has passed several bills to provide aid to workers impacted by the coronavirus pandemic. These federal protections may expand what is available under current federal and California law, and will be discussed further in the Q&A section below.
Residential real estate activities are considered essential services, so the State guidelines allow real estate broker offices to re-open as long as health and safety protocols are followed; however, many localities have imposed stricter requirements. Please check your locality’s rules to determine whether there are stricter rules on real estate activities.
Independent contractors may be able to access benefits under the DEIC or new federal emergency programs.
For employees, review eligibility and paid sick time provided under California and local laws, as well as the new federal legislation.
If an employee is unable to work or must take care of a sick family member, State Disability Insurance and Paid Family Leave may also provide wage replacement benefits. Federal legislation may provide some relief as well.
The Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) provide unpaid job-protected leave for eligible employees.
Additional information regarding time off work for childcare due to school closures, working remotely, and employee medical issues, is provided in the article below.
Residential real estate services have been deemed an essential service. What does this mean for my real estate business?
On March 28, 2020, the federal government issued guidelines that classified residential real estate services as essential. Since Governor Newsom’s stay-at-home executive order incorporates the federal guidelines, residential real estate activities are now considered essential in California. However, localities such as cities and counties can impose stricter requirements on what qualifies as an essential service or how activities may be conducted, and many have done so. Please check your locality’s rules to ensure that you remain in compliance with any requirements regarding real estate activities. C.A.R. has created several materials to help you keep current and assist you with best practices on re-opening and operating your real estate office during the pandemic, in addition to publishing information on safely showing properties. These documents include a sample COVID-19 Prevention Plan for Re-opening a Real Estate Office, a slide deck for the mandatory COVID-19 training for workers, an Industry Guidance Showing Rules FAQ, Quick Guides and several other materials found here: https://www.car.org/riskmanagement/covidlegaldocs. Per the State Industry Guidance for Real Estate Transactions, if any of your activities lend themselves to being performed online, such as filling out forms or getting electronic signatures, it is strongly recommended that you continue doing so remotely.
Leaves and Benefits
Under California law, most real estate salespersons are independent contractors. What rights and benefits are they entitled to?
Generally, independent contractors are not entitled to most of the protections provided to traditional “W-2” employees, such as paid sick leave, and not eligible for unemployment benefits. However, during the COVID-19 crisis, there may be some safety nets for independent contractors. For example, California offers an optional Disability Insurance Elective Coverage (DIEC) program for eligible self-employed individuals and independent contractors who want to be covered by disability insurance and paid family leave. If you have enrolled in the DIEC program, you may be eligible to receive benefits if you are unable to work due to being sick or if you are caring for a sick family member. More information about the DIEC program can be found here: https://www.edd.ca.gov/disability/Self-Employed.htm.
On March 18, 2020, the federal government passed the Families First Coronavirus Response Act (FFCRA), which is applicable through December 31, 2020 and provides independent contractors with two key benefits that they would not have been entitled to under current California law: (1) Under the federal legislation, eligible independent contractors who must self-isolate or are diagnosed with COVID-19 are now able to claim a tax credit for sick leave. Such sick leave also applies to independent contractors caring for a child due to school or childcare provider closures. (2) Similarly, eligible independent contractors who must take leave to care for a seriously ill family member can claim refundable tax credits. The tax credits are refundable and creditable against income and self-employment taxes.
Additionally, on March 27, 2020, the federal government passed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). The CARES Act created a new Pandemic Unemployment Assistance program (PUA) that expanded unemployment benefits to workers who were not eligible for traditional unemployment benefits (including independent contractors), and provided for an additional $600 per week to eligible workers on top of the unemployment benefit the worker would be eligible for in his or her state. More information about PUA can be found here. However, the additional $600 provided to workers expired at the end of July when Congress could not reach a deal on extending the benefit. On August 8, 2020, President Trump signed an executive order that would provide eligible workers with an additional $400 per week in unemployment benefits through August 29, 2020, so long as the worker’s state contributes $100 of the additional benefit. Currently, there is significant uncertainty about numerous aspects of the executive order, including its legality. C.A.R. will provide updates as soon as more information becomes available.
If an employee is exposed to COVID-19 and/or gets sick, can he or she use paid sick days?
Yes, if the employee meets certain requirements. Under California law, employees who (1) work for the same employer for at least 30 days within a year, and (2) satisfy a 90-day employment period before taking any sick leave are entitled to take at least 3 days of paid sick leave. Several California cities (including Los Angeles, Santa Monica, Berkeley, Emeryville, Oakland, San Diego, and San Francisco) provide for more expansive sick leave. Note that an employee does not need to actually be diagnosed with coronavirus to take paid sick days – for example, an employee can use sick days for preventative care that may include self-quarantine after possible exposure. More information about paid sick leave under California state law can be found here: https://www.dir.ca.gov/dlse/paid_sick_leave.htm.
Under the FFCRA, employers with less than 500 employees must provide employees with two weeks of paid sick leave if the employee is unable to work (or work remotely) because the employee is subject to a quarantine order or has been advised by a health care profession to self-quarantine; the employee is experiencing symptoms of COVID-19; the employee is caring for an individual who is subject to quarantine; or if the employee is caring for a child whose school or childcare providers are closed. Employers subject to this provision of the FFCRA will receive tax credits to offset the cost of providing the paid sick leave.
If an employer already offers 2 weeks of paid sick leave, do they still need to provide the 2 weeks mandated by the FFCRA?
Yes. The FFCRA grants employees 2 weeks of paid sick leave in addition to any sick leave an employee may have accrued. In addition, employers are prohibited from requiring employees to use up their paid time off before using the 2 weeks of sick leave provided by the FFCRA.
What happens if an employee runs out of paid sick days (including, if applicable, the 2 weeks of paid sick leave mandated by the FFCRA)?
An employee who is unable to work due to being sick with, or having been exposed to, COVID-19 may be eligible for disability insurance from the State of California. Disability insurance provides short-term benefits to eligible workers who have full or partial loss of wages due to non-work-related illness. Governor Newsom’s March 12, 2020 Executive Order has waived the usual one-week unpaid waiting period, so eligible workers can collect disability insurance benefits for the first week that they are out of work. More information about filing disability insurance claims can be found here: https://edd.ca.gov/Disability/How_to_File_a_DI_Claim_in_SDI_Online.htm.
What can an employee do if he or she needs to take care of a sick family member?
If an employee needs to take care of a family member who is sick or quarantined, the employee can use paid sick leave he or she is entitled to under the FFCRA, and any paid sick days that he or she has accrued. Additionally, the employee can file a Paid Family Leave claim under California law, which provides up to 6 weeks of benefit payments to eligible workers who have a full or partial loss of wages due to taking time off work to care for an ill family member. For purposes of Paid Family Leave, a “family member” is defined as a child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner. More information on filing for Paid Family Leave can be found here: https://edd.ca.gov/Disability/How_to_File_a_PFL_Claim_in_SDI_Online.htm.
Aside from paid leave, the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA) both entitle eligible employees to take up to 12 weeks of unpaid leave during a 12-month period to care for ill family members. The FMLA restricts the definition of “family member” to an employee’s spouse, child, or parents, while the CFRA also includes domestic partners and parents-in law.
What if an employee needs to care for a child due to school closures?
If an employee needs to take time off to care for a child because the child’s school has closed, the employee may be eligible for unemployment benefits. To be eligible, the employee must not have any other child care options available and be unable to continue working his or her normal hours remotely. More information about filing for unemployment benefits can be found here: https://edd.ca.gov/Unemployment/Filing_a_Claim.htm.
As part of the FFCRA, the federal government has enacted an emergency expansion of the FMLA. Under this expansion, employees are entitled to up to 12 weeks of paid family leave if they are unable to work (or work remotely) due to their child’s school closure or if another childcare provider is unavailable due to COVID-19. The first 10 days of leave may be unpaid, but the employee can choose to use accrued paid time off or other available paid leave if he or so wishes. After the 10-day period, employees are entitled to receive at least 2/3 of their normal pay rate. In addition, employees who are unable to work due to a child’s school closure may qualify for the additional $600 unemployment benefit provided under the PUA.
What is the FFCRA’s small business exemption regarding leave due to school closings?
Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as a going concern. In order to take advantage of the exemption, an authorized officer of the business must determine in writing that one or more of the following are true: 1) The requested leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; 2) The absence of the employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or 3) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting leave, and these labor or services are needed for the small business to operate at a minimal capacity. To elect this small business exemption, the employer must document that a determination has been made pursuant to these criteria. The employer does not (and should not) provide this documentation to the DOL but should keep the records in its files. Importantly, small business that fall under this exemption are still subject to the paid sick leave provisions of the FFCRA and must still post notice of the FFCRA.
What are the tax-related benefits offered to employers under the CARES Act?
Employer payroll tax payments will be deferred through the end of 2020. These deferred payments would then be paid over 2 years, in 20201 and 2022. These deferred payments would then be paid over 2 years, half in 2021 and the other half in 2022.
Additionally, the CARES Act provides for a refundable tax credit against employer payroll taxes for eligible employers that are impacted by the coronavirus (including fully or partially suspending their business due to orders from a governmental authority), but retain their employees. The tax credit would be 50% of eligible employee wages, though the amount of wages that are taken into account for the tax credit will not exceed $10,000 per employee. The IRS’s website contains more detailed information on the employer tax credit: https://www.irs.gov/newsroom/covid-19-related-tax-credits-general-information-faqs
Do employees have the right to work remotely?
Usually, no. Currently, there is no federal or California law that gives employees the right to work remotely. However, since some localities have imposed restrictions on or banned in-person real estate activities, employers are encouraged to allow their employees to work remotely if possible. If an employer is exempt from any restrictions, there are still specific situations, such as when an employee is immunocompromised, where it would be prudent for the employee and employer to discuss working remotely or other options, as a reasonable accommodation under federal or state disability laws.
Does workers’ compensation apply to remote workers?
Yes. If an employee working remotely sustains a work-related injury, he or she may be eligible for workers’ compensation benefits. More information about workers’ compensation can be found here: https://www.dir.ca.gov/InjuredWorkerGuidebook/InjuredWorkerGuidebook.html.
Medical Exams and Reasonable Accommodation
Can employers require COVID-19 testing of employees before allowing them to work in the office?
Employers can choose to administer a COVID-19 viral test (to determine if an employee has an active case of COVID-19) because an individual with the virus may pose a direct threat to the health of other persons in the workplace. Employers should ensure such viral tests are accurate and reliable. In contrast, the U.S. Equal Employment Opportunity Commission (EEOC) has stated that the Americans with Disabilities Act does not allow employers to require antibody testing (which shows whether a person previously had COVID-19) before allowing employees to re-enter the workplace, because results regarding the presence of antibodies do not meet the ADA’s “job related and consistent with business necessity” standard for employee medical examinations.
How can employers screen an employee’s health each day before allowing them into the workplace?
Per the State Industry Guidance, employers must have a COVID-19 prevention plan that includes individual control measures and screening for COVID-19. Employers can conduct: 1) temperature screening; 2) symptom screening (e.g., asking whether the individual has any symptoms such as a fever, cough, difficulty breathing, loss of taste of smell, etc.); or 3) require employee self-screening at home prior to coming into the workplace.
How should medical information be kept by the employer?
Any medical information about employees (e.g., records of temperature readings, information from COVID-19 symptom screenings, or information about employee illnesses, etc.) maintained by the employer must be kept confidential. Employee medical records must be stored separately from the employee’s personnel file. COVID-19 medical information can be stored in the employee’s existing separate and confidential medical file.
What must the employer do when an employee has a disability and requests an accommodation?
Individuals with serious underlying medical conditions, such as those with heart or lung disease or diabetes, are at higher risk of hospitalization and serious complications from COVID-19. Employers may not exclude an employee from the workplace solely because the individual has a medical condition that puts him or her at a higher risk for severe illness from COVID-19. The employer would only be able to take such action if that employee’s disability poses a “direct threat” to his or her health that cannot be reduced or eliminated with a reasonable accommodation.
The California Fair Employment and Housing Act and the Americans with Disabilities Act require an employer to provide reasonable accommodation for an employee with a physical or mental disability in order to perform the essential functions of the job, unless it would cause the employer undue hardship (significant difficulty or expense). If the employee requests a reasonable accommodation, or if the employer becomes aware of the need for an accommodation (e.g., by observation) the employer must initiate an “interactive process” with the employee to assess the job and the individual’s needs related to the reasonable accommodation. If the disability is not already known or obvious, the employer may ask for information to establish the condition is a disability, the limitations that require accommodation, and request supporting medical documentation. Examples of reasonable accommodation might include: changing the employee’s work schedule or job duties, relocating the work area, or providing leave for medical care. More information can be found here: https://www.dfeh.ca.gov/accommodation/
Can employers require employees to wear face coverings in the workplace?
Generally, yes. But if an employee has a disability that requires reasonable accommodation, e.g., an employee with respiratory issues where the mask would impede breathing, then the employer should discuss the employee’s request for an accommodation and provide an alternative if feasible per the “interactive process” described above.
Where can I find more information about COVID-19, the Americans with Disabilities Act and other anti-discrimination laws?
The EEOC has published answers to many commonly asked questions from employers regarding COVID-19 and how to handle employee health screenings, requests for reasonable accommodation due to a disability, and other issues, which can be found here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. Employers also may need to seek advice from an attorney specializing in employment law, in order to determine the appropriate action in some cases.
The information contained herein is believed accurate as of August 12, 2020. It is intended to provide general answers to general questions and is not intended as a substitute for individual legal advice. Advice in specific situations may differ depending upon a wide variety of factors. Therefore, readers with specific legal questions should seek the advice of an attorney.
Copyright© 2020 CALIFORNIA ASSOCIATION OF REALTORS® (C.A.R.). This material may not be used or reproduced for commercial purposes. Other reproduction or use is strictly prohibited without the express written permission of the C.A.R Legal Department. All rights reserved.