All employers have been greatly impacted by COVID-19 and nonprofit employers are no exception. We have posted frequently about the impact of COVID-19 on the nonprofit sector. To address the myriad issues related to being open for business while the pandemic continues, we invited our colleague, Richard Rosenberg, a trusted employment law attorney of Ballard Rosenberg Golper & Savitt, LLP, to share an overview of the key topics you need to know about.
In determining whether they can remain open – or reopen – for in-person activity, nonprofit employers must look at the current orders from both California and the employer’s locality.
California is currently under the Blueprint for a Safer Economy Plan, Los Angeles County is under the Reopening Safer At Work and in the Community Order, and the City of Los Angeles is under the SAFER L.A. Order. Nonprofit employers must examine each applicable business sector order promulgated by the state and local authorities to determine which ones apply to them and what must be done to remain open. It’s likely that portions of their operations can reopen while others cannot.
Safety Requirements
California
Once a nonprofit employer has determined that it can open for in-person activity, it must comply with a complicated patchwork of safety requirements. Both California and individual localities have instituted different – and sometimes conflicting – safety requirements.
In California, all employers – with limited exceptions – must comply with the Cal/OSHA Emergency Temporary Standards. In accordance with the Temporary Standards, all employers must prepare and implement a written COVID-19 Prevention Program containing certain required policies. These policies include the following, among others:
- A system for employees to report COVID-19 symptoms
- Processes for screening employees for COVID-19 and identifying COVID-19 hazards
- Procedures to respond to COVID-19 cases in the workplace, including procedures to identify those exposed to COVID-19
- Provision of training and instruction to employees on COVID-19
- Physical distancing and face covering requirements
- Reporting requirements
- Exclusion of employees who have COVID-19 or were exposed to COVID-19 and return to work criteria
- Exclusion Pay for employees required to be excluded
- Procedures in the event of an outbreak
- Special requirements for employers who provide housing or transportation to employees
The California Department of Public Health (“CDPH”) has also issued industry specific guidance for safe reopening. Employers must review the guidance applicable to their business, implement the requirements, and publicly post the completed checklist. The checklist also must be distributed to employees. As there is no industry guidance specifically for nonprofits, employers must make an individual determination of which guidance applies to their business.
Localities
Nonprofit employers must also follow the safety requirements provided by their specific locality. These requirements are usually contained in the Reopening Order of the locality of their business and in guidance issued by the local health officer.
For example, non-profit employers located in Los Angeles County must follow both the Protocol for Social Distancing and the industry specific reopening protocol(s) applicable to their business. The protocols cover similar topics to those in the Cal/OSHA Emergency Temporary Standards involving safety precautions. California employers located elsewhere can find the rules that apply to them at https://covid19.ca.gov/get-local-information/.
Employee Leave Obligations
There is currently no federal leave requirement specific to COVID-19, though there was until December 31, 2020. That is when the Families First Coronavirus Response Act (“FFCRA”) expired. However, Congress appears to be on the verge of passing a new Stimulus Act that will contain either a renewal of or a new version of the FFCRA. Thus, non-profit employers must be on the lookout for a new federal COVID-19 related paid sick leave requirement.
Nonprofit employers with 5 or more employees must follow their typical California family leave procedures to determine whether an employee is eligible for leave due to a COVID-19 related reason. Larger employers (those with at least 50 employees working within a 75 mile radius of one another) also must follow the federal Family and Medical Leave Act (FMLA) when addressing time off matters associated with COVID-19.
In California, employers are required to provide “exclusion pay” under the Cal/OSHA Emergency Temporary Standards. For employees who are able to work but must be excluded from the workplace due to potential workplace exposure, employers must continue and maintain the employee’s earnings, as well as the employee’s seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job.
California’s previous COVID-19 paid sick leave law – Supplemental Paid Sick Leave – expired on December 31, 2020 and is no longer in effect. However, employers should be on alert for a renewed version of the law in the upcoming months.
Nonprofit employers must also determine whether their locality has passed any COVID-19 related leave laws. For example, larger private employers (generally 500+ employees) located in the unincorporated areas of Los Angeles County must provide COVID-19 related paid sick leave in accordance with the County’s Supplemental Paid Sick Leave ordinance. Covered employers must provide up to 80 hours of paid sick leave to employees who cannot work or telework because of one of the following reasons:
- A public health official or healthcare provider requires or recommends the employee isolate or self-quarantine due to COVID-19;
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- The employee needs to care for a family member who is subject to a quarantine or isolation order or has been advised by a health care provider to self-quarantine; or
- The employee needs to care for a family member whose senior care provider or whose school or child care provider ceases operations.
Similarly, nonprofit employers with either (1) 500 or more employees working within the City of Los Angeles or (2) 2,000 or more employees nationwide must provide COVID-19 related paid sick leave to employees working anywhere within the City of Los Angeles in accordance with the City’s Supplemental Paid Sick Leave ordinance. The City’s ordinance provides paid sick leave in a similar fashion to the County’s ordinance but with a few key differences.
Reporting & Recording Requirements
Nonprofit employers must keep track of employees who test positive for COVID-19 and report specific information to their workers comp claims administrator within three (3) business days of a positive test. Moreover, there is a presumption in California that a worker’s COVID-19 related illness is related to his or her employment, and thus subject to workers compensation, if certain conditions are met.
Nonprofit employers with more than 10 employees must also record work-related COVID-19 illnesses on their Cal/OSHA Log of Work-Related Injuries and Illnesses (Log 300). A work-related COVID-19 related illness must be reported to Cal/OSHA within eight hours if it results in serious illness, serious injury, or death, and to Fed/OSHA within 8 hours if it results in a fatality or within 24 hours if it results in hospitalization. In determining whether a COVID-19 illness is work-related, employers should look at the amount of cases in the workplace, the level of contact the employee has with the public, physical distancing and other safety controls in the workplace.
Requiring Vaccination
Mandatory vaccination is a very controversial topic. Recent guidance from the Equal Employment Opportunity Commission (“EEOC”) suggests that employers may require employees to receive a COVID-19 vaccination before returning to the workplace. However, most nonprofit employers have been doing just fine with some (or all) employees working from home. A continuation of that arrangement for the vaccine objector may be required, even if the arrangement is not ideal.
The EEOC has stated that if an employee elects to not receive the vaccination due to a medical reason, or on account of their sincerely held religious belief, the employer needs to go through a rigorous documented process showing that the employer is unable to accommodate the employee remaining unvaccinated. Where the vaccine refusal is based upon a medical reason, great caution should be exercised. The employer must be able to demonstrate that an unvaccinated employee in the workplace poses a direct threat to the safety of his or her coworkers and no reasonable accommodation can be made to reduce the threat. This determination involves an evaluation of the specific work environment and any factors that would make an unvaccinated person more or less of a threat to the safety of others. And, since the work from home arrangement has been working for most, employers will be hard pressed to refuse continuation of that arrangement for the vaccine objector. A similar approach is required when the employee poses a religious objection. Employers considering this approach should consult with counsel about what’s required before taking action.
Conclusion
As is evident from this overview, there are numerous COVID-19 related regulations nonprofit employers must comply with in order to remain open or reopen during the pandemic. Nonprofit employers that fail to comply with the regulations face stiff penalties and possible employee lawsuits or agency enforcement. Thus, before reopening, check with competent employment counsel. Another good idea is to check with your insurance brokers (workers comp and D&O) for any relevant resources.