An employer must provide respirators when necessary to protect the health of the employees.  Cal/OSHA addresses the use of respirators in Title 8, California Code of Regulations, §5144. This usually comes up in situations of a known exposure to a hazardous substance/environment where the employer has performed a hazard assessment and determined that a respirator is required.  We are not addressing those environments here.

We are getting questions regarding the use of respirators in light of the coronavirus outbreak for employers that do not normally require the use of respirators. Unfortunately, Cal/OSHA has not provided direct guidance on when employers should require respirators in response to this pandemic.  But, before discussing respirators, Cal/OSHA recommends eliminating airborne hazardous by using engineering controls (i.e. mechanical ventilation) and administrative controls (i.e. reducing exposure such as the infection prevention measures suggested by the CDC, allowing flexible work schedules, telecommuting, increasing distance between employees.)

The next step is to determine if the exposure requires the use of respirators and here we focus on the exposure.  Fed/OSHA has provided a hierarchy of classifying worker exposure to coronavirus ranging from “Very High” to “Lower Risk”.  “Guidance on Preparing Workplaces for COVID-19” which is helpful.   The “Very High” and “High Exposure” categories include healthcare and healthcare related workers who are likely to treat, diagnose and/or transport known or suspected coronavirus patients.  In California, these employers probably have to comply with the Aerosol Transmissible Disease Standard (Title 8, CCR §5199)

Most questions are coming from employers who have “Medium Exposure” and “Lower Exposure.”

Medium Exposure” includes jobs where employees have frequent and/or close contact (within 6 feet of each other) with people who may be infected but who are not known or suspected coronavirus patients. This includes areas where there is ongoing community transmission and employees may have contact with the general public (i.e. schools, high density workplaces, high-volume retail settings).  ”Lower Exposure” includes jobs that do not require contact with people known or suspected to have coronavirus and do not have frequent contact (within 6 feet) with the general public.

The “Lower Exposure” and “Medium Exposure” workers should all follow the “Steps All Employers Can Take to Reduce Workers’ Risk of Exposure to SARS-CoV-2:”  Employers in “Medium Exposure” workplaces should consider implementing engineering controls(i.e. physical barriers, sneeze guards, etc.) and administrative controls like offering facemasks to ill employees to contain secretions until they are able to leave the workplace, informing employees and customers  about symptoms and minimizing contact, limiting customer access to public areas, minimize face-to-face contact (drive-through windows, phone-based communication, telework, etc.). From Atkinson, Andelson, Loya, Ruud & Romo: Atkinson’s Answers

Exempt, salaried employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions.  The FLSA does not require employer-provided vacation time. Where an employer offers a bona fide benefits plan or vacation time to its employees, there is no prohibition on an employer requiring that such accrued leave or vacation time be taken on a specific day(s). Further, this will not affect the employee’s salary basis of payment so long as the employee still receives in payment an amount equal to the employee’s guaranteed salary. However, an employee will not be considered paid “on a salary basis” if deductions from the predetermined compensation are made for absences occasioned by the office closure during a week in which the employee performs any work. Exempt salaried employees are not required to be paid their salary in weeks in which they perform no work.

Therefore, a private employer may direct exempt staff to take vacation or debit their leave bank account in the case of an office closure, whether for a full or partial day, provided the employees receive in payment an amount equal to their guaranteed salary. In the same scenario, an exempt employee who has no accrued benefits in the leave bank account, or has limited accrued leave and the reduction would result in a negative balance in the leave bank account, still must receive the employee’s guaranteed salary for any absence(s) occasioned by the office closure in order to remain exempt. For more information, see WHD Opinion Letter FLSA2005-41. From the Department of Labor Wages and the Fair Standard Act

Section 5103 of the EPSLA requires covered employers to post  and  keep  posted,  in  conspicuous  places  on  the  premises  of  the  employer where notices to employees are customarily posted,  a  notice,  to  be  prepared  or  approved  by  the  Secretary of Labor, of the requirements described in the Act

On March 24, 2020, the Department of Labor (DOL) published a poster found here that will satisfy the above requirement.  The poster defines which employees are eligible to receive paid sick leave, sets forth the qualifying reasons for leave and the entitlements covered employers must provide its employees. For poster FAQ click here. From Atkinson, Andelson, Loya, Ruud & Romo.

The FLSA generally applies to hours actually worked.  It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked. From the Department of Labor Wages and Fair Standard Act

If you permit teleworking—for example, you allow employees to perform certain tasks or work a certain number of hours from home or at a location other than their normal workplace—and they are unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then they are entitled to take paid sick leave.

Similarly, if an employee is unable to perform those teleworking tasks or work the required teleworking hours because they need to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, then they are entitled to take expanded family and medical leave. Of course, to the extent they are able to telework while caring for their child, paid sick leave and expanded family and medical leave is not available.

— Anne Catherine Nielsen, EquaMagna