FREQUENTLY ASKED QUESTIONS ABOUT COVID-19 AND THE WORKPLACE—GUIDANCE FOR EMPLOYERS
Last updated: March 23, 2021, to include information on SB-95, signed on March 19,2021, requiring certain employers to provide paid sick leave for COVID-related reasons discussed below.
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.
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 remain open and conduct certain in-person activities 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 DIEC 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) may 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 materials can be 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 using 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 are 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.
Throughout the course of the pandemic, the federal government has passed several pieces of legislation to provide relief to affected individuals, including the Families First Coronavirus Response Act (“FFCRA”) and the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), and the Consolidated Appropriations Act (the “CARES Act II”). On March 11, 2021, the American Rescue Plan Act went into effect and extended, with some modifications, certain portions of the FFCRA and the CARES Act/CARES Act II that had previously been set to expire.
The FFCRA 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 may also be used by independent contractors to care 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 for family leave. The tax credits for sick leave and family leave are refundable and creditable against income and self-employment taxes and, pursuant to the American Rescue Plan Act, can be claimed by independent contractors for leave taken through September 30, 2021. Note that the American Rescue Plan has expanded paid sick and family leave to include leave taken to get a COVID-19 vaccine or to recover from complications related to receiving a COVID-19 vaccine.
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). PUA benefits were extended under both the CARES Act II and the American Rescue Plan Act. More information about PUA can be found here, including eligibility criteria, how to apply, and the amount of benefits available for eligible claimants.
If an employee is exposed to COVID-19 and/or gets sick, can he or she use paid sick days?
Yes. On March 19, 2021, Governor Newsom signed SB 95, which requires all employers with more than 25 employees to provide COVID-19 supplemental paid sick leave. Under SB 95, employees of covered employers may take up to 80 hours of paid sick leave if the employee is unable to work due to matters related to COVID-19, including going to an appointment to receive a COVID-19 vaccination or if the employee experiences symptoms from receiving a COVID-19 vaccination. Covered employers must begin providing COVID-19 supplemental paid sick leave on March 29, 2021; however, the law is retroactive to January 1, 2021, meaning that if an employee took leave that would otherwise have qualified as COVID-19 supplemental paid sick leave from January 1, 2021 through March 28, 2021, the employer must make retroactive payments for such leave at the employee’s request. Note that employers cannot request medical certification prior to granting COVID-19 supplemental paid sick leave to an employee.
In addition to the new leave established under SB 95, additional sick leave may be available under California’s already-existing paid sick leave law 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.
Through the end of 2020, the FFCRA required employers with less than 500 employees to provide employees with up to two weeks of paid sick leave if the employee was unable to work (or work remotely) because the employee was subject to a quarantine order or had been advised by a health care professional to self-quarantine; the employee was experiencing symptoms of COVID-19 and was seeking a medical diagnosis; the employee was caring for an individual who was subject to a quarantine order or had been advised by a health care provider to self-quarantine; if the employee was caring for a child whose school or childcare providers were closed due to reasons related to COVID-19; and if the employee was experiencing any other substantially-similar condition specified by the U.S. Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury. Employers subject to this provision of the FFCRA could receive tax credits to offset the cost of providing paid sick leave.
The FFCRA’s mandatory paid leave requirements expired on December 31, thus eliminating covered employers’ obligation to provide paid sick leave. However, the CARES Act II gave employers the option to provide such paid leave and extended the tax credits available to employers through March 31, 2021. The American Rescue Plan has further extended these tax credits through September 30, 2021.
What happens if an employee runs out of paid sick days (including, if applicable, the 2 weeks of paid sick leave that an employer may voluntarily provide under 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/about_edd/coronavirus-2019/faqs/disability-paid-family-leave.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 under the FFCRA if his or her employer provides FFCRA leave, COVID-19 supplemental paid sick leave under SB 95, 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 8 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?
CaliforniaIf an employee needs to take time off to care for a child because the child’s school has closed, the employee may use COVID-19 supplemental paid sick leave provided under SB 95. If the employee has already used all of his or her COVID-19 supplemental paid sick leave, or if the employee does not work for an employer covered by SB 95, he or she 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 enacted an emergency expansion of the Family and Medical Leave Act. If an employer offers this expanded family leave under the FFCRA, employees would be 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. Although the first 10 days of family leave were previously unpaid under the FFCRA, the American Rescue Plan Act has removed that exclusion period so that employers may now immediately provide paid family leave and claim the corresponding tax credit.
In addition, employees who are not receiving paid leave and are unable to work due to a child’s school closure may qualify for traditional unemployment benefits, including unemployment benefits provided under the CARES Act II and the American Rescue Plan Act. See C.A.R.’s FAQ here for more information.
What are the tax-related benefits offered to employers under federal relief legislation?
Tax credits for paid leave
Covered employers who provide paid sick leave and/or paid family leave under the FFCRA are eligible to receive tax credits to offset the cost of providing such leave. The American Rescue Plan Act has extended these tax credits to leaves through September 30, 2021. According to the IRS, eligible employers may claim the credits on their federal employment tax returns (such as Form 941, Employer’s Quarterly Federal Tax Return), but can receive the benefits of the credits more quickly by reducing their federal employment tax deposits. In the event an eligible employer has insufficient federal employment taxes to cover the credits due to the employer, the employer can request an advance payment of the credits by submitting Form 7200, Advance Payment of Employer Credits Due to COVID-19. More information about employer tax credits under the FFCRA can be found here: https://www.irs.gov/newsroom/covid-19-related-tax-credits-basic-faqs.
Deferral of employer payroll taxes
Employer payroll tax payments were allowed to be deferred through the end of 2020. These deferred payments would then be paid over 2 years, half in 2021 and the other half in 2022. This deferral option expired at the end of 2020 and is no longer available.
Employee retention tax credits
The CARES Act provided for a refundable tax credit through December 31, 2020 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 was 50% of eligible employee wages, though the amount of wages taken into account for the tax credit could not exceed $10,000 per employee. The CARES Act II extended the credit from January 1, 2021 through June 30, 2021 and also increased the credit to 70% of up to $10,000 in eligible wages per employee per quarter. The American Rescue Plan Act has further extended the employee retention tax credit from July 1, 2021 through December 31, 2021.
Is there a COVID-19 workers’ compensation presumption and are there reporting requirements regarding workers’ compensation?
Yes. SB 1159 was enacted on September 17, 2020 and remains in effect through January 1, 2023. SB 1159 codified and supersedes Governor Newsom’s previous Executive Order N-62-20, that covered California employees between March 19 and July 5, 2020. SB 1159 creates a rebuttable presumption (i.e., an employee is presumed to have contracted COVID-19 at work for purposes of awarding workers’ compensation benefits) when certain criteria are met. In addition to provisions for first responders and health care workers, this law provides a rebuttable presumption for employees in workplaces that have 5 or more employees when the employee tests positive for COVID-19 during an “outbreak” at the workplace (per SB 1159, for employers with 100 employees or fewer, an “outbreak” occurs when 4 employees test positive within 14 calendar days, or when the workplace is ordered closed by public authorities due to risk of COVID-19 infection). To challenge the presumption, employers can introduce evidence regarding their compliance with health and safety rules and industry-specific guidance for COVID-19 prevention. Employers must also report certain information to their workers’ compensation claims administrator within 3 business days of knowing or reasonably knowing that an employee tested positive for COVID-19, including information about the employee who tested positive and the highest number of employees who reported to work in the 45-day period preceding the last day the employee worked at the site. The Labor Commissioner may impose penalties up to $10,000 for non-compliance. Additional information about the workers’ compensation presumption and reporting requirements may be found here: https://www.dir.ca.gov/dwc/Covid-19/FAQ-SB-1159.html
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, because of the current surge in COVID-19 cases and 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. For non-essential office workplaces (e.g., association offices), California’s “Blueprint for a Safer Economy” contains a four-colored Tier system based upon each county’s COVID-19 infection status, and requires remote work only for non-essential office workspaces when the county is in Tier purple (widespread) or Tier red (substantial). See https://covid19.ca.gov/industry-guidance/ and “Guidance for Office Workspaces” at https://files.covid19.ca.gov/pdf/guidance-office-workspaces--en.pdf)
In addition, please note there are 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 and anti-discrimination 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.
COVID-19 Testing, Vaccinations, and Reasonable Accommodation
Can employers require COVID-19 viral testing of employees before allowing them to work in the office and require periodic testing to determine if their presence in the workplace poses a direct threat to others?
Yes, according to current guidance from the Equal Employment Opportunity Commission (“EEOC”). Per the Americans with Disabilities Act (“ADA”), mandatory medical testing of employees must be “job related and consistent with business necessity.” 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, keeping updated with CDC and FDA recommendations. In contrast to viral testing, the the ADA 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.
Employers are reminded that a negative viral test does not mean the employee will not acquire COVID-19 at a later point. All workers should follow the infection control practices (face coverings, physical distancing, handwashing, cleaning and disinfecting, etc.) to prevent COVID-19 infections in the workplace.
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 (e.g., 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.
Can employers require employees to be vaccinated against COVID-19?
At this time, many employers are encouraging their employees to be vaccinated against COVID-19 but are not requiring vaccinations before re-entering the workplace. Current EEOC guidance indicates that an employer vaccination requirement for employees returning to the workplace is not per se unlawful. Information on this topic is evolving, as some states are considering legislation that could limit the ability of schools, government agencies and employers to mandate vaccination (and in New York there is a competing bill to mandate vaccines). If an employer wants to implement a policy requiring vaccination, the employer may wish to obtain legal advice from an employment law specialist and consider issues such as responding to employees who may raise objections based on medical condition, religious, or other reasons.
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.
Notifying Employees of COVID-19 Exposure
What are the employer’s notification requirements when it learns of a COVID-19 case in the workplace?
California Assembly Bill 685 (effective January 1, 2021) requires employers to notify employees and other workers within 1 business day, if they were present on the worksite during the “infectious period” of a person who is a “Qualifying Individual.” This notice must be provided in the same manner the employer normally uses to communicate employment-related messages (e.g., personal service, email, text, or other manner normally used to communicate such information). The “infectious period” is:
1) For an individual who develops symptoms, the “infectious period” begins 2 days before they first develop symptoms. The infectious period ends when the following criteria are met: 10 days have passed since symptoms first appeared, AND at least 24 hours have passed with no fever (without use of fever-reducing medications), AND other symptoms have improved.
2) For an individual who tests positive but never develops symptoms, the infectious period for COVID-19 begins 2 days before and ends 10 days after the specimen for their first positive test for COVID-19 was collected.
A “Qualifying individual” is a person who has:
A laboratory-confirmed case of COVID-19, as defined by the State Department of Public Health (currently, this includes nucleic acid (PCR) and antigen tests);
A positive COVID-19 diagnosis from a licensed health care provider;
A COVID-19 related order to isolate provided by a public health official; or
Died due to COVID-19, in the determination of a county public health department or per inclusion in the COVID-19 statistics of a county.
The notice to employees and workers must contain information including: 1) a notice to the employees and other workers that they may have been exposed to COVID-19 (but keeping the identity of the COVID-19 affected individual confidential); 2) Information about benefits under federal and state law such as workers compensation, company sick leave, state-mandated leave, in addition to information about anti-retaliation and anti-discrimination protections for workers; and 3) information about the employer’s disinfection and safety plan.
The employer also must report “COVID-19 outbreaks” to the local health department. For non-healthcare workplaces, a “Covid-19 outbreak” is: 3 or more COVID-19 cases among workers at the same worksite within a 14-day period. Once this threshold is met, the employer has 48 hours to report to the local health department in the jurisdiction where the worksite is located, and the employer must continue to notify the local health department of additional COVID-19 cases identified among workers at the worksite.
*The C.A.R. Legal Q & A “California AB 685: Notification to Employees About Potential Exposure to COVID-19” contains more details, in addition to a sample template that employers may use, and can be found here: https://www.car.org/riskmanagement/qa/broker-practice-folder/AB685
The information contained herein is believed accurate as of March 23, 2021. 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, a tax professional or both.
© 2021 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.