Employers Must Post Certain Notices Upon Re-opening in Orange, San Diego, and Los Angeles Counties

1 Jun

May 30, 2020 from Payne & Fears PC

Reopen

As counties move to re-open businesses, many counties have issued requirements for businesses to post notices regarding their compliance with safe re-opening protocols.

Orange County

On May 29, 2020, and effective the same day, the County Health Officer of the Orange County Health Care Agency issued an amended order and strong recommendations to help slow the spread of COVID-19. Included in this amended order was a mandate that all businesses, industries, and entities listed on the state’s websites on industry guidance and county roadmaps that reopen in Orange County as part of Stage 2 of the State’s Resilience Roadmap post certain notices. All re-opening businesses, industries, and entities must post the following in a location visible to the public at the public entrances of each property:

  1. Industry-specific checklist. The State of California has prepared checklists for a variety of industries and businesses to help these employers implement their plan to prevent the spread of COVID-19. These checklists can be found here. Scroll down to find your industry/business type and press the “+” on the right side. The checklists will be linked below.
  2. An attestation by the owner and/or operator that the business has:
  • Performed a detailed risk assessment and implemented a site-specific protection plan;
  • Trained employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them;
  • Implemented individual control measures and screenings;
  • Implemented disinfecting protocols; and
  • Implemented physical distancing guidelines.

San Diego County

San Diego County has a similar mandate effective as of May 27, 2020: All reopened businesses, other than restaurants providing dine-in services, must prepare and post a “Safe Reopening Plan” on this form for each of their facilities in the county. Restaurants providing dine-in services must prepare and post a “COVID-19 Restaurant Operating Protocol” on this form for each restaurant in the county. These documents must be posted at or near the entrance of the relevant facility and shall be easily viewable by the public and employees. Note that a copy of the Safe Reopening Plan or COVID-19 Restaurant Operating Protocol must also be provided to each employee performing work at the facility.

Los Angeles County

Los Angeles County has had similar notice requirements in place. Relevant businesses must post the relevant protocol notice at or near the entrance to the facility so that it is easily viewable by the public and employees. The required protocol that a business must post depends on the type of business. The order describes what protocol businesses need to post. The relevant information of the order starts on page 8. LA also has a website with available signs for businesses to post.

Other counties have similar requirements.

Small Business Administration Issues Additional Guidance on Forgiveness of Paycheck Protection Program Loans

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By Melissa Ostrower and Robert R. Perry May 26, 2020, Jackson Lewis PC

The Small Business Administration (SBA) has issued guidance on the forgiveness provisions applicable to loans made under the Paycheck Protection Program (PPP) created by the CARES Act.

The SBA was required to issue guidance on these provisions within 30 days of the enactment of the CARES Act, or no later than April 26, 2020. On May 15, 2020, the SBA issued guidance in the form of the PPP Loan Forgiveness Application and Instructions. On May 22, 2020, the SBA issued additional guidance in the form of an Interim Final Rule.

(For details on PPP, see our article, Paycheck Protection Program Loans: Basics for Small Businesses, Sole Proprietorships.)

The Forgiveness Application answers many questions, including:

  1. Is there flexibility in determining Covered Period?

Under previously issued guidance, the SBA made clear that the Covered Period is the eight-week (56-day) period following the date the PPP loan proceeds are disbursed. For example, if the employer received its PPP loan proceeds on Monday, April 20, the first day of the Covered Period is April 20 and the last day of the Covered Period is Sunday, June 14.

In the Forgiveness Application, the SBA has introduced an Alternative Payroll Covered Period concept. Under this alternative, employers with a biweekly (or more frequent) payroll schedule may elect to calculate eligible payroll costs using the eight-week (56-day) period that begins on the first day of their first pay period following their PPP Loan Disbursement Date (Alternative Payroll Covered Period). For example, if the employer received its PPP loan proceeds on Monday, April 20, and the first day of its first pay period following its PPP loan disbursement is Sunday, April 26, the first day of the Alternative Payroll Covered Period is April 26 and the last day of the Alternative Payroll Covered Period is Saturday, June 20.

  1. What are “costs incurred and payments made” during the Covered Period?

The Forgiveness Application provides: “Borrowers are generally eligible for forgiveness for the payroll costs paid and payroll costs incurred during the eight-week (56-day) Covered Period (or Alternative Payroll Covered Period).” (Emphasis added.) Costs that are incurred but not paid during the applicable period are eligible for forgiveness if they are paid on or before the next regular payroll date (for payroll costs) or before the next regular billing date (for nonpayroll costs.)

Additionally, the Forgiveness Application provides that eligible nonpayroll costs eligible for forgiveness include expenses paid during the Covered Period or incurred during the Covered Period and paid on or before the next regular billing date, even if the billing date is after the Covered Period. This provision appears to permit the payment of past due eligible nonpayroll costs during the applicable period (subject to the 25% limitation on nonpayroll costs).

  1. What does “full-time equivalent employee” mean?

The Forgiveness Application is the first guidance to shed light on the meaning of “full-time equivalent.” This critical term was not defined in the CARES Act or addressed in any other guidance issued.

To calculate the average full-time equivalency (FTE) during the Covered Period or the Alternative Payroll Covered Period, determine the average number of hours paid for each employee per week, divide by 40, and round the result to the nearest one-tenth (but in no event greater than 1.0). Employers with a workforce that has a lower headcount but greater hours and earnings (such as a nursing home) get no extra credit (and could actually be penalized, depending on applicable facts and circumstances) under this formula. A simplified method that assigns a 1.0 for employees who work 40 hours or more per week and 0.5 for employees who work fewer hours may be used at the election of the employer.

The reference to “employee” and “paid” in this definition suggests that furloughed employees or other employees receiving pay while not rendering services should be included in the FTE calculation. However, as terminated employees are generally no longer considered to be “employees,” it is unlikely that former employees who are receiving pay can be included.

  1. If an employer decides to pay furloughed employees or to give employees bonuses or raises during the Covered Period or Alternative Payroll Covered Period, do these count as payroll costs?

When calculating cash payroll costs under the Forgiveness Application, the borrower is directed to include the sum of gross salary, gross wages, gross tips, gross commissions, paid leave (vacation, family, medical or sick leave, not including leave covered by the Families First Coronavirus Response Act), and allowances for dismissal or separation paid or incurred during the Covered Period or the Alternative Payroll Covered Period (subject to the $100,000 annual salary cap, as prorated for the Covered Period).

The Interim Final Rule clarifies that:

  • If a borrower pays furloughed employees their salary, wages, or commissions during the Covered Period, those payments are eligible for forgiveness, as long as they do not exceed an annual salary of $100,000, as prorated for the Covered Period; and
  • If an employee’s total compensation does not exceed $100,000 on an annualized basis, the employee’s hazard pay and bonuses are eligible for loan forgiveness, because they constitute a supplement to salary or wages, and are thus a similar form of compensation.
  1. Are some FTE reductions excluded?

Yes. The Forgiveness Application recognizes it is appropriate to exclude certain employees from the FTE calculation. The following FTE reductions do not reduce an employer’s loan forgiveness:

  • Any positions for which the employer made a good-faith, written offer to rehire an employee during the Covered Period or the Alternative Payroll Covered Period that was rejected by the employee (previously announced in FAQ 40); and
  • Any employees who during the Covered Period or the Alternative Payroll Covered Period (a) were fired for cause, (b) voluntarily resigned, or (c) voluntarily requested and received a reduction of their hours.

The Interim Final Rule adds the following requirement to the rehire provision: The employer must have informed the applicable state unemployment insurance office of each employee’s rejected offer of reemployment within 30 days of the employee’s rejection of the offer. Further information regarding how borrowers will report information concerning rejected rehire offers to state unemployment insurance offices will be provided on SBA’s website.

To utilize these exceptions, employers must maintain documentation regarding any employee job offers and refusals, firings for cause, voluntary resignations, and written requests by any employee for reductions in work schedule.

  1. How do salary and wage reductions affect the forgiveness calculation?

The Forgiveness Application provides detailed guidance on how to calculate the loan forgiveness amount where the salary or hourly wages of certain employees have been reduced during the Covered Period or the Alternative Payroll Covered Period (as compared to the January 1, 2020, to March 31, 2020, period). If the employer timely restored or restores salary/hourly wage levels, the employer may be eligible for elimination of the Salary/Hourly Wage Reduction amount.

The Interim Final Rules clarifies that to ensure borrowers are not doubly penalized, the salary/wage reduction applies only to the portion of the decline in employee salary and wages that is not attributable to the FTE reduction. Thus, if a terminated employee is excluded from the numerator of the FTE reduction fraction, the reduction in the employee’s salary or wages is not also deducted from the forgiveness amount.

  1. What about amounts paid to general partners and members of an LLC?

The Forgiveness Application also clarifies whether and to what extent amounts paid to partners and LLC members count as potentially forgiven payroll costs. Line 9 of Schedule A includes in the calculation of payroll costs the “[t]otal amount paid to owner-employees/self-employed individual/general partners.” The instructions to Schedule A provide that Line 9 includes “any amounts paid to owners (owner-employees, a self-employed individual, or general partners) … capped at $15,385 (the eight-week equivalent of $100,000 per year) for each individual or the eight-week equivalent of their applicable compensation in 2019, whichever is lower.”

Cal/OSHA Expands Employer Injury and Illness Prevention Program Requirements

May 27 2020 – COVID-19 (Coronavirus), Workplace Safety – Matthew J. Roberts, Esq.

CalOsha

Cal/OSHA has provided guidance on COVID-19-related employee training including cough and sneeze etiquette.

The California Department of Occupational Safety and Health, commonly known as Cal/OSHA, continues to modify rules and guidance for businesses operating during the COVID-19 pandemic. General industry and several industry-specific rules and guidelines have been modified. Recently, Cal/OSHA modified its rules and guidance on all employers’ obligation to establish and implement an Injury and Illness Prevention Program (IIPP).

Under California law, employers must establish, implement and maintain an IIPP to protect employees from hazardous workplace conditions. The IIPP must be in writing, accessible to employees and contain several provisions including:

  • Procedures for creating safe and healthful work practices;
  • Procedures for identifying, evaluating and investigating workplace hazards, injuries and illnesses;
  • Systems for communicating hazards to employees; and
  • Employee training whenever the employer learns of a new or unrecognized hazard.

When COVID-19 infections started appearing, employers were required to determine if COVID-19 infection was a workplace hazard. Now that COVID-19 is a pandemic with widespread community exposure, employers must update their IIPPs with measures to control infection in the workplace.

Cal/OSHA instructs employers to follow applicable and relevant recommendations from the Centers for Disease Control and Prevention (CDC). Cal/OSHA references two CDC publications for employers to use when establishing infection prevention measures: Interim Guidance for Business and Employers to Plan and Respond to Coronavirus Disease 2019 and Coronavirus Disease 2019 (COVID-19): How to Protect Yourself & Others.

In addition, Cal/OSHA has provided guidance on COVID-19-related employee training which includes the following components:

  • Training provided in a language readily understood by all employees.
  • General description of COVID-19, symptoms, when to seek medical attention, how to prevent its spread and the employer’s procedures for preventing its spread at the workplace.
  • How an infected person can spread COVID-19 to others even if they are not sick.
  • How to prevent the spread of COVID-19 by using cloth face covers, including:
    • CDC guidelines that everyone should use cloth face covers when around other persons.
    • How cloth face covers can help protect persons around the user when combined with physical distancing and frequent hand-washing.
    • Information that cloth face covers are not protective equipment and don’t protect the person wearing a cloth face cover from COVID-19.
    • Instructions on washing and sanitizing hands before and after using face coverings, which should be washed after each shift.
  • Cough and sneeze etiquette.
  • Washing hands with soap and water for at least 20 seconds, after interacting with other persons and after contacting shared surfaces or objects.
  • Avoiding touching eyes, nose and mouth with unwashed hands.
  • Avoiding sharing personal items with coworkers (i.e., dishes, cups, utensils, towels).
  • Providing tissues, no-touch disposal trash cans and hand sanitizer for use by employees.
  • Safely using cleaners and disinfectants, which includes:
    • The hazards of the cleaners and disinfectants used at the worksite.
    • Wearing personal protective equipment (PPE) (such as gloves).
    • Ensuring cleaners and disinfectants are used in a manner that does not endanger employees.

Employers may access the full general industry guidance on the Cal/OSHA website. Several additional guidelines for specific industries, such as agriculture, childcare and construction, can be viewed here. Employers who need to update their written IIPP should consult with legal counsel to ensure that it meets with the requirements under California law.

Matthew J. Roberts, Esq., Employment Law Counsel Subject Matter Expert

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