As the novel coronavirus (COVID-19) outbreak continues to evolve, national, state and local governments and agencies are updating their guidance for employers. The latest updates, broken down by region, are addressed here.
National Emergency Declared: Today at 12:33 p.m. PST, President Donald Trump declared a national emergency to accelerate the response to COVID-19. This will open access to a variety of additional funding and other federal resources.
Nationally
President Trump’s Presidential Proclamation on March 11 halted nearly all travel from Europe except for the United Kingdom (26 countries) to the United States, effective today at midnight through 11:59 p.m. on April 13, 2020. The proclamation allows for the continued entry of U.S. citizens, lawful permanent residents and their spouses; parents and legal guardians of U.S. citizens or lawful permanent residents (provided the individual is unmarried and under the age of 21); and several categories of aliens. The inevitable economic impact of this proclamation means that many companies will need to continue to find ways to operate through remote means such as telework.
The Centers for Disease Control and Prevention (CDC) continues to issue guidance to employers. These recommendations should be reviewed with counsel, in line with other available information. For instance, the recommendation that employers should not require a healthcare provider’s note for employees who have acute respiratory illness and return to work may conflict with the employer’s obligation to maintain a safe workplace.
In the last 24 to 48 hours, the CDC and local health departments have also determined that community spread of COVID-19 has taken place in cities, counties and states throughout the nation, including Dallas County, Texas; Santa Clara County, California; New Rochelle, New York; Florida; and other jurisdictions. As set forth below, this determination will impact the operation of companies that continue to transact business in person.
As of the time of this publishing, President Trump is anticipated to declare a national emergency, which may further impact employer responses to this situation.
District of Columbia, Maryland and Virginia
In Washington, D.C., Mayor Muriel Bowser declared a state of emergency and public health emergency on Wednesday. D.C. officials recommend postponing or canceling gatherings of 1,000 or more people. By making the declaration, the mayor now has the authority to order medical quarantines, request federal assistance and take steps to stem price gouging on critical supplies. A building has been leased as a potential quarantine facility.
As of yesterday, the governors of Maryland and Virginia have both declared a state of emergency.
New York
On March 7, 2020, Governor Andrew M. Cuomo declared a state of emergency in New York, and further announced restrictions that would ban most public gatherings of more than 500 people. On March 12, 2020, New York City Mayor Bill de Blasio similarly declared a citywide state of emergency and suggested that further public gathering restrictions are imminent.
Among those public gathering restrictions could include widespread closings of public schools, which would, of course, impact the ability of some parents to report to work. In addition to considering temporary adjustments to your company’s telecommuting policies, New York City employers should be aware that New York City’s Paid Safe and Sick Leave Law entitles employees to use their accrued sick leave to care for a child whose school or child care provider closes due to a public health emergency.
California
Labor and Workforce Development Agency Issues Guidance
Pursuant to Governor Gavin Newsom’s declaration of a state of emergency and instruction to state agencies to issue guidance, state agencies began releasing guidance to employers this week. California’s Labor and Workforce Development Agency (LWDA) issued guidance to employers and their workers on the availability of various benefits, as well as on interpretations of various laws.
Specifically, the LWDA advised that 1) workers who are sick or quarantined due to COVID-19 may be eligible for Disability Insurance, 2) those who must care for someone who is ill or quarantined may be eligible for Paid Family Leave, and 3) workers who are furloughed or whose hours are reduced as a consequence of COVID-19 may be eligible for unemployment benefits.
Employers who are experiencing a slowdown in their businesses or are otherwise impacted as a result of COVID-19 will be eligible to apply for some of the following benefits: 1) a work sharing program to allow employers to retain employees while they work reduced schedules; 2) the Employment Development Department’s Rapid Response Service, which may avert layoffs or business closures; and 3) the ability to file for a 60-day extension on state payroll taxes.
CDC Determines the Existence of Community Spread
Effective March 11, Santa Clara County’s Public Health Officer issued a three-week order canceling all mass gatherings of 1,000 or more people at a time in a single room or space, such as an auditorium, a large conference room, a meeting hall, a cafeteria, a theater, or any other confined indoor or confined outdoor space.
As a result of widespread community transmission of COVID-19, the CDC issued recommendations for employers in Santa Clara. Specifically, the CDC has recommended regular health checks (e.g., temperature and respiratory symptom screening) of staff on arrival each day and of visitors entering buildings. Per the guidance issued by the EEOC, discussed in our previous article, the declaration of a pandemic and the determination of widespread transmission in the community permit employers to make these medical inquiries, despite the general prohibition on such inquiries under the American with Disabilities Act.
The CDC has also recommended the expansion of current sick leave policies to encourage individuals to stay home when sick. Congress is similarly considering legislation to increase the availability of sick leave for employers. Notably, if passed, the Healthy Families Act (Senate 840 and H.R. 1784), which was previously stalled in Congress, would provide seven days or 56 hours of sick leave to employees nationally.
Los Angeles and San Diego Shutter Schools
Los Angeles and San Diego school districts made the decision today to cancel classes beginning Monday. The Los Angeles Unified School District is the second-largest school district in the United States. This move will almost certainly mean that many employees who were working from home may no longer have that luxury, if they are unable to find daycare. Employers with 25 or more employees should be mindful that this development likely constitutes an “emergency” that triggers the right to leave for up to 40 hours, under Labor Code Section 230.8.
For additional assistance with compliance and concerns regarding the response to COVID-19, please reach out to a member of the Employment and Labor team at Manatt.
For regular updates on the major challenges companies are facing, please visit our COVID-19 resources page.