COVID Risk Levels

“I keep hearing about low risk, high risk, etc. related to COVID-19 but I don’t know what they mean.”

Your HR Survival Tip

Many of the things we’ve heard relating to COVID-19 have been confusing. This is because the laws and regulations keep changing as the infection rates increase or more is learned about COVID. The Federal Occupational Safety and Health Administration (OSHA) has provided the following to help us:

  • Lower Exposure Risk — Given to jobs that do not require close contact with other people. This level is typical of remote workers (i.e., those working from home during the pandemic); office workers who do not have frequent close contact with coworkers, customers, or the public; and healthcare workers providing only telemedicine services.

  • Medium Exposure Risk — Given to jobs that require either frequent close contact or sustained close contact with other people in areas where COVID is transmitted from community to community. Typical of this level are workers who have frequent or sustained contact with coworkers or the public, including under close working conditions outdoors or in well ventilated indoor workplaces; and those living in shared housing facilities.

  • High Exposure Risk — Given to jobs with a potential for exposure to known or suspected sources of SARS-CoV-2 or exposed to people with known or suspected COVID-19. This includes healthcare delivery and support staff, medical transport workers, mortuary workers, and those workers who have frequent or sustained contact with coworkers or the public under close working conditions indoors or in poorly ventilated spaces or workplaces.

  • Very High Exposure Risk — Given to jobs with a very high potential for exposure to known or suspected sources of SARS-CoV-2 during specific medical, postmortem, or laboratory procedures. This level is typical of healthcare workers performing aerosol-generating procedures or collecting or handling specimens, and morgue workers performing autopsies.

As a reminder, “close contact” is defined as being within 6 feet of a positive person for a total of 15 minutes or more over a 24-hour period. An employee can easily infect others before they even know they are positive. While it’s impossible to completely eliminate risk even with the best prevention practices, you can definitely help protect your employees by simply ensuring everyone is wearing a mask whenever they are within 6 feet of someone else… without exception. Even though we’ve been dealing with COVID for too long, you can’t afford to stop enforcing your protocols.

Retroactive ABC Test

“I have two contractors that I’ve been using for quite a while. Is it true that a recent ruling might make me susceptible to a retroactive lawsuit if California doesn’t believe they are legitimate contractors?”

Your HR Survival Tip

We have seen many changes to our use of independent contractors over the past three years. California has always assumed a worker is an employee and it’s up to the company to prove otherwise. If you classify someone as a contractor and CA disagrees, it’s considered a “misclassification” with associated fines and penalties.

The standard used for many years was the Borello test that included 20 determination points, with a focus on the amount of control the company had over the contractor and their compensation. Then the CA Supreme Court introduced the ABC test in 2018 during the Dynamex case and the use of contractors was forever altered.

The ABC test focuses on classification standards under California’s wage orders. This test resulted in a very short list of acceptable uses for contractors and who qualified as a contractor. Then AB5 was passed and the door for contractors opened a bit. Proposition 22 opened the door even wider, affecting gig drivers for companies like Uber, Lyft, GrubHub, etc. Both these laws list who may qualify as a contractor but, as usual, it’s never completely black and white.

The problem areas we see in determining whether a contractor would be viewed as such by California are primarily two-fold:

  • First, is that contractor operating as a regular business? Do they have a business name, are they marketing that business, do they provide similar services to multiple clients, and are they bringing expertise to your business that you don’t have?

  • Second, is that contractor involved in your basic business operations to make your product or to service your clients? If so, they may be too involved and could be considered an employee by the state.

The most recent CA Supreme Court decision states the ABC test will likely be retroactive for all currently pending misclassification lawsuits and similar cases that will be filed in the next year or so. The simple explanation is that you need to be even more careful when hiring a contractor than ever before because the courts are locking this issue down.

Agency Scramble

“I often hear about one government agency or another but I can’t keep it straight on who does what. Can you help?”

Your HR Survival Tip

It can be confusing but it’s also an important thing to know when you operate a business in California. While we try to provide the agency name at least once when using acronyms, not everyone does.

As you may have guessed, California has many more laws than the Federal government or its own version of laws. This means you need to be careful about the source of your information. If you hear about a legal change, you want to make sure you’ve heard California’s version of it because it’s likely to be different than the Federal version. The following may help you:

  • Labor Law — This is the branch of government dealing with all things about employees, such as labor law, safety and health, workers’ compensation, etc. The Feds call their agency the Department of Labor (DOL). California calls theirs the Department of Industrial Relations (DIR). Under the DIR is the Labor Commissioner’s Office that will (for free) help an employee get any wages due them.

  • Civil Rights — The Feds use the U.S. Equal Employment Opportunity Commission (EEOC) to deal specifically with claims of discrimination and harassment. In California, the Department of Fair Employment and Housing (DFEH) focuses on discrimination in employment, housing, businesses, bias-motivated violence, and human trafficking. The DFEH is the agency that would also manage an employee’s claim about their right to a family/medical leave.

  • Wages — Did you know the Fed’s Internal Revenue Service (IRS) is where you can find the Federal rules about earnings, deductions, and other items involving money? In California, it’s actually the Employment Development Department (EDD) that is concerned about how, when, and what you pay employees. The EDD also manages unemployment and state supplemental pay, such as state disability and paid family leave.

  • Safety — The Federal government’s Occupational Safety and Health Administration (OSHA) is managed by the DOL. California’s version is the Division of Occupational Safety and Health (Cal/OSHA) and is managed by the DIR.

We hope this explanation makes it easier to understand which agency does what. One thing to remember is that all these agencies use the U.S. Post Office to initially communicate with you. They may continue a discussion by email or phone but that is never the way they first contact you about an issue.

Using Direct Deposit for a Final Paycheck

“Why can’t I use direct deposit for a final paycheck?”

Your HR Survival Tip

The simple answer is that you usually won’t be compliant with the law. Of course, there are exceptions, based on how your payroll is processed.

When you review the legal requirements, it becomes easier to understand what you need to do. The big thing to remember is, if you are late with a final paycheck, you must keep paying the employee until you can get that final check in their hands. The Labor Commissioner is happy to help the employee get the money that’s due plus the daily penalty. Here is the timing for each situation:

  • Employee is fired — You must provide a final paycheck that same day. On a side note, if you have the employee come to work just to be fired, you must make sure reporting time pay has been added to that check. Reporting time pay is half their scheduled time but no less than 2 hours and no more than 4 hours. If the employee normally works an 8-hour day, their reporting time pay must be 4 hours.

  • Employee has resigned — You must provide a final paycheck on the last day they are working if they provided more than 3 days’ notice. If you decide you’d rather they leave immediately, you have legally changed their resignation to a firing. This means you (a) owe them the final paycheck that day, and (b) have made them eligible for unemployment because they were fired.

  • Employee stormed off the job — If you weren’t given notice, you only have 72 hours to get that employee a final paycheck. That is 3 days but it’s calendar days, not business days. This is always a challenge when the employee walks off on a Friday. You need to get that check ready and sent that day for overnight delivery.

Most companies use an external payroll processor that needs 1-3 days for a direct deposit. This timing doesn’t work with the final paycheck timing so, if this is your situation, you need to plan for another way to provide that final paycheck. It’s easiest to learn how to create a manual check within your payroll system and how to print a copy of the pay stub (wage statement). Then, the next time you run payroll, the system processes it so all the income and taxes are recorded properly.

There is no reason to take a chance with direct deposit. It may seem easier to you but that will only last as long as it takes for the Labor Commissioner to notify you of a claim of late payment. Develop a process that’s simple and legal.

How to Document and Track Your CFRA Leaves

Tuesday, 1/26/2021, 9-10 a.m.
$49 for 1-Hour Live Webinar

Is This Webinar for You?

  • YES, if you will be subject to this law (5+ employees). 
  • YES, if you want to learn to manage leaves yourself (instead of paying us).

About this Webinar

This training is designed for companies with 5 or more employees anywhere… who also have employees working in California. The revisions to California’s Family Rights Act (CFRA) are now in effect so you need to be prepared to manage your first leave of absence. Join us to learn how you can manage CFRA leaves yourself.

  • Learn what is legally required to be in writing.
  • Be able to plan the deadlines for documents and return to work.
  • Learn our method for tracking a leave.
  • Notification templates and our tracking tool will be provided.

Presented by Candi Freed, Senior HR Consultant with HR Jungle LLC.

Reporting COVID

As positive COVID cases continue to rise, we want to remind everyone of your reporting requirements. This was simpler a few months ago but new laws have been layered upon old laws and now reporting is more tedious. If you have an employee testing positive (and who doesn’t just work from home), you must make several reports and notifications now and even more as of 1/1/2021.

Most importantly, only the DWC-1 form below has the positive case employee’s name on it. Every other document should only use an identifier code, not the employee’s name.

Within one business day of a positive test result:

  • Have the employee complete a DWC-1 regarding how they believe they were exposed. This stays in your files.

  • Provide written notice to all employees (and contractors and contractor’s companies) who were on that worksite within the infectious period that they may have been exposed to COVID-19. The infectious period is 2 days before the first symptom/test and approximately 10 days after.

  • Provide written notice to all employees who may have been exposed explaining COVID-related benefits they may be entitled to from you and from state/federal governments, such as paid time off to quarantine.

  • Provide written notice to all employees about your disinfection and safety plans.

The next reporting requirements are:

  • Within 48 hours, notify your County Health Department.

  • As soon as possible, report the positive case to your workers’ compensation carrier without using the employee’s name but include the date they were tested, the worksite address, and the highest number of employees who reported to that worksite over the preceding 45 days.

We are hearing about too many positive cases and exposures but this was, unfortunately, expected after Thanksgiving. Unless you want to be paying employees to quarantine, please work hard to enforce your safety protocols. Also, reinforce the need for personal safety over the holidays. It’s hard to stay home when the family tradition has been to gather and enjoy time together. However, celebrations with only the members of your household are the safest and best way to ensure everyone remains healthy for the new year.

Latest COVID Information

“I’m so confused about all the rules out there for COVID. Can you simplify it for me?”

Your HR Survival Tip

Don’t feel like you’re alone. You’re confused because the laws and regulations are piling on top of each other instead of business owners receiving one clear message. While we will try to provide a few tips and insights here, this topic has moved into OSHA’s (Occupational Safety and Health Administration) domain rather than employment law (our specialty). Therefore, we strongly recommend you talk with your Safety Manager or outsourced safety company.

Cal/OSHA is California’s version of OSHA but with a few additions to the Federal rules. On 11/30/2020, Cal/OSHA approved new regulations that went into effect immediately. Some of those regulations are contrary to what the CDC (Centers for Disease Control) uses but we must follow Cal/OSHA rules until they update them. The best thing about these regs were the definitions provided:

  • A COVID-19 “case” is defined as someone who has tested positive, with or without symptoms, employee or non-employee.

  • Close contact” is defined as being within six (6) feet of someone for, or more than, 15 minutes total in a 24-hour period regardless of wearing masks.

  • The “exposure period” is the period of 48 hours prior to the onset of symptoms or the positive test (whichever was first) of the “case” and for up to 10 days after the positive test.

  • An “exposure” is defined as someone who has had “close contact” with a “case” during the “exposure period.”

  • Quarantine” is 14 days from first symptoms, a positive test, or exposure. Yes, the CDC has a shorter time but you must follow Cal/OSHA rules.

Make sure you train your employees to inform you if they either start having symptoms that could be COVID, test positive, or are exposed. Also, make sure your employees understand they must immediately quarantine and not come to work. The employee is allowed to work remotely, if possible. Once the Case or Exposure is in quarantine, you must start tracking and doing notifications.

  • If the Exposure is an employee, you can have them tested but they must stay in quarantine regardless of the results.

  • If the Case is an employee, find out where the Case has been working and whom they might have had Close Contact with during the exposure period.

  • You cannot state the name of the Case/Exposure due to CA’s privacy laws. However, you can tell those who were around the Case that someone they were around has tested positive. Determine whether they had Close Contact with the Case and are another Exposure.

  • When doing tracking and notifications, you’ll need to consider external locations where the Case might have had Close Contact with workers in other companies. You do need to notify that company if there was Close Contact possible but, in many situations, you need to let them know even if there wasn’t.

Although the documentation isn’t going to be discussed here, keep in mind that you must notify the County Health Department and your workers’ compensation carrier about a Case. The Case will also have to be reported on your OSHA Log. Have your Case/Exposure complete a DWC-1 form and write a brief summary of exactly when and how they were exposed within 24 hours. There will be required written notifications as of 1/1/2021 and a previous law has the tracking continuing through 2022 so it’s best to develop a good tracking system now.

Within 5 Hours

“I’m confused about how to calculate when employees need to start their meal break.”

Your HR Survival Tip

California is very specific about the timing of the meal and rest breaks for non-exempt (hourly) employees so it’s important you understand the law.

The 30-minute unpaid meal break must begin WITHIN the first 5 hours of an employee’s day. This means you must have them clock out on or before 4 hours and 59 minutes from clocking in that day. Once the timeclock hits 5 hours from clock in time, they are late with their meal period and owed one hour of premium pay that day. You are expected to enforce the meal break so you should seriously consider scheduling these breaks to ensure everyone starts their break within the allotted time and you have coverage for them while on break.

  • Clock in at 7:05 am requires a clock out on or before 12:04 pm.

  • Clock in at 8:30 am requires a clock out on or before 1:29 pm.

  • Clock in at 9:00 am requires a clock out on or before 1:59 pm.

A 10-minute paid rest break is available to the employee when they work “the greater of a 4-hour period.” While you can’t restrict what they do and where they go on a rest break, you can let them know they won’t be paid any extra time taken. It is only 10 minutes. An exception is if the distance to and from your own break room would make 10 minutes unreasonable. The rest break relies less on enforcement and more on making sure your employees know the breaks are available and they are allowed to take them. If employees state they aren’t allowed to take their rest breaks, you may have to pay an hour of premium pay so be sure everyone knows how to get their breaks. Again, you are allowed to schedule these.

Premium pay is paid at their regular rate of pay and should be on the wage statement (pay stub) as a separate line item so you have proof you’ve paid it. “Regular” rate of pay legally means their average hourly rate for the week if they earn different hourly rates. If your company rounds clock in/out times, remember that is only how you’re calculating their pay. Don’t use rounding when calculating whether or not they get the premium pay. The meal break is different and the law is very clear about that 5 hours. Let us know if you’d like help putting all of this in a written policy to ensure compliance.

Avoid Hefty Fines and Lawsuits


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Multiple Rates

“My skilled employees are paid a high rate because they work with clients and I can bill my clients for their time. However, now I’m starting company meetings and I really don’t want to pay that high rate for them to attend my meetings since I can’t bill for that time. What are my options?”

Your HR Survival Tip

While California can be very picky about wages, we do have some options regarding pay. California has recognized the different values of different types of work for years. The state already allows us to pay employees minimum wage for time spent driving when that isn’t their normal job. This is because you didn’t hire that person to be a driver. You hired them to be a therapist, electrician, plumber, etc…a job that typically earns a higher wage. It makes sense to pay a skilled employee more but you aren’t going to be excited to pay them that amount if they aren’t doing that level of work.

Just a few examples of employees who might earn two different rates include:

  • Your employee is a licensed therapist. They could earn a higher wage when working with clients versus time spent at your company meetings.

  • Your employee is a certified consultant. When working with clients they could earn a higher wage versus time spent in your weekly online meetings.

  • Your employee is a trainer. They could earn a higher wage performing their primary training duties versus doing the cleaning for your company.

As you might have noticed in the above examples, there is a big difference in the type of work between one role versus the other. You want to be able to fully justify each rate. You already have a justification for their normal, higher rate. You just need an equally reasonable justification for paying them the lower rate. Just be sure the lower rate doesn’t include any of their skills paid at the higher rate. You want a clean division of skills or talents needed for each type of paid time.

Once you have a solid justification, you need to implement the rates properly. You want a printed document that includes details about both rates and the employee’s signature on the document. The document must name each rate (such as skilled and base rates), the amount paid for each (plus the overtime and double-time rates), and the effective date. Provide the affected employees at least a couple of weeks’ notice before you implement these rates.

Be aware not everyone will be thrilled with a lower rate for any reason because this really only benefits you. You could choose a lower rate that saves you money but doesn’t appear too low to them or you could implement the lower rate by reducing it a bit periodically over time. The messaging you use to explain this policy will make a big difference in how well it’s received.