Governments responding to the pandemic have adopted and modified laws that affect California dealerships. Here are our recommendations to help them comply:
2021 Federal Spending Bill
The Consolidated Appropriations Act of 2021 includes multiple provisions to address the pandemic’s ongoing economic impact.
The most important business provision is the modification of the Families First Coronavirus Relief Act. There are two main provisions: Emergency Paid Sick Leave and Emergency Family Medical Leave. The EPSL provision mandates up to two weeks of paid sick leave (in addition to any state/local/other sick leave you provide) to qualified employees. The EFML provision expands FMLA job-protected leave to those employed for at least 30 days who can’t work due to the pandemic.
Mandated leave under FFCRA ended with the new year. Now, qualifying employers can provide paid sick leave, relying on the same criteria established in the EPSLA. In return for providing emergency paid sick or FMLA leave, employers will receive a tax credit through March 31.
While the FFCRA generally did not apply to employers with over 500 employees, California enacted AB-1867 in September, effectively extending the paid leave provisions of the FFCRA to large employers.
The bill also includes $285 billion to small businesses for forgivable Paycheck Protection Program loans. The maximum loan size is 2.5 times a business’ average monthly costs, up to $2 million.
The bill expands the employee retention credit intended to prevent layoffs and rolls over a variety of temporary tax breaks. Deferred payroll tax payments may be paid throughout 2021.
Cal/OSHA Emergency Regulations
Cal/OSHA finalized new temporary emergency standards for employers in November, largely reinforcing the requirements of the Governor’s Blueprint for a Safer Economy guidance. The basic requirements are:
- Maintain an effective written COVID-19 Prevention Program;
- If there are three or more cases of COVID-19 within 14 days at a workplace, offer testing to potentially exposed employees at no cost during working hours and provide them with information on COVID-19-related benefits;
- Contact the local health department no later than 48 hours after learning of three or more COVID-19 cases within 14 days for guidance on protecting other workers;
- Maintain a record of and track all COVID-19 cases among employees, while keeping medical information confidential.
The regulation also sets out specific standards for determining how to determine if an “exposure” to COVID-19 has occurred at a workplace.
The high-risk exposure period is:
- If COVID-19 symptoms present: from two days before symptoms first developed until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.
- If COVID-19 symptoms aren’t present: from two days before until 10 days after the first positive specimen was collected.
These specific rules should provide businesses with greater certainty in determining which employees should quarantine due to an exposure to COVID-19.
SB 1159: COVID-19 and Worker’s Compensation
The legislature’s SB-1159 formalizes the state’s approach to COVID-19 and worker compensation and creates a rebuttable presumption that an employee contracted COVID-19 at work.
For most dealers, an outbreak occurs when, over a 14-day period, four or more employees test positive at a single facility. If a workplace has 100 or less employees, the threshold for an outbreak is four employees; if it the workplace has more than 100 employees, the threshold is 4%.
Dealerships should treat each facility as a single workplace. If two or more facilities are on the same lot, treat them as two separate facilities unless employees use space in both. Facilities on separate lots should be treated as separate workplaces. Individual employees who work at multiple workplaces should be counted as a positive case at each facility they work at.
The second major change due to the law is clarification regarding requirements to report COVID-19 cases to worker’s compensation claims administrators. When an employer knows or should know an employee has tested positive, the employer must report this.
Employers may be subject to civil penalties up to $10,000 for violating reporting requirements.
AB 685: Notices Regarding Positive COVID-19 Cases or Exposure
If an employer learns that an employee has tested positive, the employer must notify employees, their union representatives and the employer of any subcontracted employees within one business day. Employees who may have been exposed must receive special notices. If an employer learns of three or more COVID-19 cases at the workplace in a two-day period, they must, within 48 hours, share with the local public health agency the positive-testing employees’ names, number, occupation and worksite.
Attorney Monica Baumann (above) is a shareholder with Scali Rasmussen PC, specializing in cybersecurity and employment law, particularly in automotive.