After the fastest reported increase in coronavirus cases since the start of the pandemic- with new infections doubling in the past 10 days-California Governor Newsom “sound[ed] the alarm,” announcing on November 16 that 40 counties are moving in the wrong direction under the state’s reopening plan. Twenty-eight counties moved into the state’s most restrictive purple tier under California’s Blueprint for a Safer Economy, signifying that the coronavirus is “widespread.” Now, 41 of the state’s 58 counties are purple, a stark contrast from only 13 purple tier counties last week.
Several Bay Area and Southern California counties are affected:
- Alameda, Contra Costa, Santa Clara, Napa and Solano counties are reverting to the purple tier, while San Francisco, Marin and San Mateo counties are stepping back into the second-most restrictive red tier (indicating “substantial” virus spread).
- Orange and Ventura counties-which improved to red in September and October, respectively-are retreating to purple, joining Los Angeles, Orange, Riverside, Ventura, Santa Barbara, and San Bernardino counties in the purple tier.
California employers and employees are already feeling the effects. Purple status severely limits indoor activity, including:
- Restricting capacity at retail establishments and malls (open indoors at 25% capacity);
- Moving fitness centers, family entertainment, and movie theaters to outdoor only;
- Limiting restaurants and wineries to limited outdoor-only service;
- Closing bars and breweries;
- Requiring schools to remain online only; and
- Requiring non-essential offices to work remotely.
With 94% of the state’s population now in the purple tier, talk of curfews, and restrictions being one step away from the stay-at-home orders that swept the US in March, the scaled back reopening undoubtedly will have devastating economic impacts on businesses and their employees.
California, Washington and Oregon travel advisories
Governor Newsom’s November 16 announcement follows the November 13 announcement of a California-Oregon-Washington joint travel advisory. The governors of the three states urged people arriving to their states (including returning residents) to self-quarantine for 14 days and limit their interactions to their immediate household. In addition, the advisory encourages people to stay home “or in their region” and avoid non-essential travel to other states or countries. Essential travel includes travel for “work and study, critical infrastructure support, economic services and supply chains, health, immediate medical care and safety and security.” Non-essential travel includes tourism or recreational travel.
Paid leave under the FFCRA or the California COVID-19 supplemental paid sick leave law during the California travel advisory
California employers may be wondering what this all means for employees who travel out-of-state despite the advisory. Should employers require traveling employees to self-isolate for 14 days when they return in compliance with the advisory? Must the employees be paid while they self-isolate?
The answers depend on whether the employee is eligible for paid sick leave under the Emergency Paid Sick Leave Act (“EPSLA”) established by the Families First Coronavirus Relief Act (“FFCRA”) (which we blogged about here), the California’s COVID-19 supplemental paid sick leave law (which we blogged about here), or a local paid sick leave ordinance. It also matters whether the employer is open for business (and thus has work for the employee), whether the employee can work remotely, whether the employee elects to self-quarantine upon return or instead is required by the employer to self-isolate (or at least not come to work), and whether a health care provider tells the employee to self-quarantine after travel.
What if employees unilaterally elect to self-isolate for 14 days under the California advisory after returning from out-of-state travel?
Employees are eligible for paid sick leave under the EPSLA if they cannot work or telework for one of six enumerated reasons, including (in pertinent part here) that they:
- Are subject to a Federal, State or local quarantine or isolation order related to COVID-19;
- Have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
- Are experiencing COVID-19 symptoms and seeking a medical diagnosis.
Under the first EPSLA qualifying reason, employees are eligible for paid sick leave for self-quarantine if they cannot work or telework because they are “subject to a Federal, State or local quarantine or isolation order related to COVID-19.” Stay-at-home and shelter-in-place orders that prevent employees from working trigger this EPSLA reason, but the California travel advisory is an advisory, not a quarantine, isolation, stay-at-home, or shelter-in-place order. Therefore, employees who unilaterally elect to heed the California advisory and self-quarantine will not be eligible for paid sick leave under the EPSLA during their quarantine period, or at least the advisory alone will not trigger an EPSLA sick leave obligation.
For employee-elected isolation, the result should be the same under the California COVID-19 supplemental paid sick leave law. That FFCRA “gap filler” statute requires covered employers to provide supplemental COVID-19 paid sick leave to employees when:
- They are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- They are advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
- They are prohibited from working by the hiring entity due to health concerns related to the potential transmission of COVID-19.
The first prong of California’s COVID-19 supplemental paid sick leave law is identical to the first prong of the EPSLA, and therefore the outcome is the same: because the travel advisory is not a government quarantine or isolation order, it does not trigger paid sick leave coverage for employees who voluntarily follow the travel advisory after returning from out-of-state travel.
Note that under the federal and California statute, however, an employee’s voluntary off-duty travel that subjects the employee to a mandatory post-travel self-isolation period (such as New York’s mandatory self-isolation for residents returning from “hot spot” states) would qualify the employee for paid sick leave.
What if the employer requires the employee to self-isolate (or more accurately, to stay away from the workplace) for 14 days after out-of-state travel?
If an employer requires an employee to self-isolate for 14 days after out-of-state travel, the employee should qualify under the third CA COVID-19 supplemental paid sick leave reason: the employee is “prohibited from working by [the employer] due to health concerns related to the potential transmission of COVID-19.” Therefore, if the company elects to enforce the travel advisory by requiring employees to remain off work for 14 days post-travel, the company must provide supplemental COVID-19 paid sick leave if the employees are otherwise eligible for the paid leave and cannot work remotely from home (see below for more on working on home). But if the company leaves it up to the employee to decide on self-isolation, supplemental paid sick leave is not owed.
The EPSLA does not have an equivalent qualifying reason to the “employer prohibition” reason under the CA COVID-19 supplemental paid sick leave law, so employers covered by the EPSLA who enforce the travel advisory by requiring employees to self-isolate for 14 days post-travel should not be required to provide paid sick leave to cover the 14 day self-isolation period.
What if an employee’s health care provider tells the employee to self-isolate for 14 days post-travel?
An employee who self-isolates post travel on the advice of a health care provider qualifies for paid sick leave under the second qualifying reason of both the EPSLA and the CA COVID-19 supplemental paid sick leave law if the health care provider’s recommendation is “due to concerns related to COVID-19.” Employers should note, however, that while an employer may request certification from a health care provider for such leave under the EPSLA, the CA COVID-19 supplemental paid sick leave law prohibits employers from requiring employees to provide a doctor’s note or certification. Instead, employees may take supplemental paid sick leave immediately upon an oral or written request for a valid reason, and a certification only may be required when the employer suspects leave abuse.
What if an employee is able to work from home during the self-isolation period?
Regardless of the scenario, if the employee can work from home during the 14-day self-isolation period, the employee is not eligible for paid sick leave under the EPSLA or CA supplemental COVID-19 paid sick leave law. Employees must be “unable to work or telework” because of one of the qualifying EPSLA reasons for leave. And the CA supplemental COVID-19 paid sick leave law only applies to employees who “leave their house” to work.
For example, employees who work on an assembly line in a plant or facility and who cannot work from home would qualify for CA supplemental paid sick leave if their employer prohibits them from working in the plant post-travel, or if their health care provider advised them to self-isolate at home post-travel. But employees who are able to work from home do not have to “leave their house to work” and can “telework.” Such employees are not eligible for either federal or state paid sick leave and can be required to work from home during the 14-day self-isolation period.
Both the EPSLA and the COVID-19 supplemental paid sick leave law are set to expire December 31, 2020. However, if Congress extends paid sick leave under the EPSLA, the COVID-19 supplemental paid sick leave will automatically extend to the new EPSLA expiration date.
California is not alone in taking drastic measures
California, Oregon, and Washington aren’t the only states experiencing dramatic increases in COVID-19 cases and corresponding restrictions and advisories. Across the nation, state and local government and health departments are cracking down to try to stop the spread of the virus. For more on the maze of state and local quarantine orders and employee travel, see our blog on the topic here. And follow our 50 state Shelter-In-Place / Reopening Tracker (updated weekly) to stay on top of all the recent and upcoming changes. For help navigating the impact of the resurgence of COVID-19 on your company and employees, contact your (remotely working) Baker McKenzie employment attorney.