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Business Reopening

The State of California has enacted a detailed four-phase process toward ending Governor Newsom's March 19, 2020, stay-at-home order and to fully reopening our economy.  An overview of the plan is as follows:

  • Phase One - Safety and Preparedness

  • Phase Two - Lower Risk Workplaces

  • Phase Three - Higher Risk Workplaces

  • Stage Four - End of Stay-at-Home Order


California has entered into Stage Two (Lower Risk Workplaces).  That is, the gradually reopening of  lower-risk workplaces at a pace designed to protect public health and safety, starting with:

  • Retail

  • Manufacturing

  • Offices (when telework not possible)

  • Outdoor Museums

  • Limited Personal Services

California Counties that meet certain criteria set forth by the  California Department of Public Health may move further ahead in the reopening process based on the level of risk unique to each county.  See: California Coronavirus (COVID-19) Response County variance

Before reopening every business must establish and strictly follow the following protocols:

  • Perform a detailed risk assessment and create a site-specific protection plan;

  • Train employees on how to limit the spread of COVID-19. This includes how to screen themselves for symptoms and when to stay home.

  • Set up individual control measures and screenings

  • Put disinfection protocols in place

  • Establish physical distancing guidelines.


To assist businesses in certain industries the California Department of Public Health has issued detailed guides to assist businesses to reopen.  See: Statewide Industry Guidance

Employee Furlough or Layoff

As countless California businesses have either closed down or have reduced their workforce during the Covid-19 pandemic, the initial question facing these businesses is whether to furlough or lay off employees and what is the difference.  A furlough is placing an employee on a temporary non-paid status with the intent to return the employee to work when economic conditions permit.  The advantage of a furlough is there is no rehiring or re-boarding process when the employee eventually returns to work.  Most employers continue health insurance and other benefits to furloughed employee, however, employers are cautioned to confer with their insurance carriers, retirement/pension plan administrators, etc.  To avoid wage and hour issues, the employer must ensure that the furloughed employee absolutely performs no work for the employer, remotely or otherwise, during the furlough.  Further, employers are cautioned to pay accrued vacation and PTO time. The California DIR equates an extended furlough as a termination requiring all earned wages paid to the employee in his or her final paycheck, including accrued PTO and vacation.

In contrast, a lay-off is considered a termination of employment with no expectation that the employee will resume future employment. A layoff must be treated as any other termination, which requires the employer to pay all wages at the time of the lay-off and issuance of a COBRA notice.

Whether an employer elects furloughs or layoffs, it is important to establish selection criteria that discriminate against a legally protected class (i.e. race, national origin, gender, age, disability, etc.), disproportionately affect employees in legally protected classes.  

Expanded Family and Medical Leave Policy (COVID-19)

All eligible California employees are entitled to up to 12 weeks of expanded family and medical leave for a qualifying need related to a public health emergency between April 1, 2020 and December 31, 2020 under the Families First Coronavirus Response Act (FFCRA).



Expanded family and medical leave is available to all employees that have been employed their current employer for at least 30 calendar days. One is considered to have been employed for at least 30 calendar days if:

  • You were on the Agency's payroll for the 30 days immediately prior to the day your leave would begin; or

  • You were laid off or otherwise terminated by the Agency on or after March 1, 2020 and were rehired or otherwise re-employed by the Agency on or before December 31, 2020, provided that you had been on the Agency's payroll for leave upon reinstatement if you had been previously employed by the Agency for 30 or more of the 60 calendar days prior to your layoff or termination.


Reason for Leave


Leave under is limited to circumstances where the employee is unable to work (including telework) due to a need to care for a son or daughter whose school or place of care has been closed, or whose childcare provide is unavailable, for reasons related to COVID-19. Son or daughter means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age or is 18 years of age or older and is incapable of self-care because of a mental or physical disability. Leave under this policy is qualifying only if no suitable person is available to care for your child during the period of such leave.


The first 10 days (two weeks) of expanded family and medical leave are unpaid. However, during this period, the employee may use accrued paid vacation, sick, or personal leave and will receive the full amount of such accrued leave.  An employee may also elect to use the paid leave provided under the Emergency Paid Sick Leave Act, which provides pay up to a maximum of $200 per day. After the first two workweeks of expanded family and medical leave, leave will be paid at two-thirds of the employee's regular rate of pay for the number of hours h or she would otherwise be scheduled to work. Pay will not exceed $200 per day and $10,000 in total, or $12,000 in total if using emergency paid sick leave for the first two weeks. Any unused portion of this pay will not carry over to the next year. For employees with varying hours, one of the following methods for determining the number of hours paid will be used:

  • If the individual has worked six months or more, the average number of hours that the employee was scheduled per day over the six-month period ending on the date on which the individual takes leave, including hours for which they took leave of any type.

  • If the individual has worked less than six months, the expected number of hours to be scheduled per day at the time of hire.



Upon returning to work at the end of leave, the employee will generally be placed in his or her original job or an equivalent job with equivalent pay and benefits. The employee will not lose any benefits that accrued before leave was taken. The law provides an exception for employers with fewer than 25 employees. In such circumstances, if the employee takes family and medical leave, the business may not need to return the employee to his or her position if:

  • The position does not exist due to changes in the Agency's economic or operating condition that affect employment and were caused by the coronavirus emergency;

  • The Agency makes "reasonable efforts" to restore you to an equivalent position; and

  • If these efforts fail, the Agency makes an additional reasonable effort to contact you if an equivalent position becomes available. The "contact period" is the one-year window beginning on the earlier of:  (1) The date on which you no longer need to take leave to care for your child; or (2)  12 weeks after your paid leave commences.

Potential Exemption

Employers with fewer than 50 employees, under certain circumstances, may deny otherwise qualifying leave under this policy if granting such leave would jeopardize the viability of the business as an ongoing concern. A business is exempt from the requirement of providing expanded family and medical leave when:

  • Such leave would cause the business expenses and financial obligations to exceed available business revenue and cause the Agency to cease operating at a minimal capacity;

  • The absence of those requesting such leave would pose a substantial risk to the financial health or operational capacity of the business because of their specialized skills, knowledge of the business, or responsibilities; or

  • The business cannot find enough other workers who are able, willing, and qualified and who will be available at the time and place needed, to perform the labor or services those requesting leave provide, and these labor and services are needed for the Agency to operate at minimum capacity.


Brad Stuckey

(213) 229-0100 - Ext. 107

Mike Dilando


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