This Legal Update updates and replaces our November 17, 2020 Legal Update Memo No. 34-2020(CC) – REVISED regarding Public Health Issues Out of State Travel Advisory and FFCRA Implications.
On January 6, 2021, the California Department of Public Health (“CDPH”) issued an updated travel advisory recommending the following restrictions for those who engaged in non-essential travel, defined as travel that is considered tourism or recreational in nature:
- “Persons arriving in California from other states or countries, including returning California residents, should self-quarantine for 10 days after arrival….” and
- “Except in connection with essential travel, Californians should avoid non-essential travel to any part of California more than 120 miles from one’s place of residence, or to other states or countries.”
This advisory was released due to the increasing rate of spread of COVID-19 in many states and countries, including new strains of the virus. We recommend that clients anticipating or planning to reopen for in-person instruction around Spring Break review this advisory, as employees and students may travel over this period. More information on travel restrictions, including a Q&A can be found at: https://covid19.ca.gov/travel/.
While the language is not mandatory, we believe that a district could cite to the advisory to establish a rule, after negotiating with applicable bargaining units, restricting employees who engage in such travel to either work from home, if the district has work to offer, or to take a leave of absence for ten (10) calendar days. Employees should have advance notice of the rule, should the district wish to establish one.
Whether and how employees would be paid for such an enforced leave is an item which must be negotiated. It would depend first on applicable provisions of the District’s collective bargaining agreement or any applicable Memorandum of Understanding, then on past practice, and lastly on Board Policy or an agreement reached through subsequent negotiation. We recommend meeting with labor partners quickly to establish such a rule prior to Spring Break, and addressing any negotiable impacts of such a rule, if the district wishes to establish a rule on this issue.
Expiration of Family First Coronavirus Response Act (“FFCRA”)
Congress did not renew the mandated emergency paid sick leave or expanded Family and Medical Leave Act leave, which expired on December 31, 2020, so employers are no longer required to provide such leave under the FFCRA. However, Congress did provide in the 2021 Consolidated Appropriations Act that employers that voluntarily provide paid leave as though the FFCRA had been extended will continue to receive full reimbursement from the federal government through tax credits and/or refunds through March 31, 2021.
Requiring Testing Prior to Return
Finally, a reminder that the Americans with Disability Act and the Equal Employment Opportunity Commission permit employers to require testing of an employee at the employer’s expense if the employer has a reasonable belief based on objective evidence that this person might have the disease. In addition, there is pending budget legislation that would tie a district’s receipt of reopening incentive grants to adopting a testing cadence. Last, any school currently open is subject to the minimum testing requirement standards established by Cal/OSHA, which include offering “response” testing (on site or through a third party) for employees exposed at work, and outbreak testing for everyone weekly until no longer considered an outbreak. (See https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#testing.)
Please contact our office with questions regarding this Legal Update or any other legal matter.
The information in this Legal Update is provided as a summary of law and is not intended as legal advice. Application of the law may vary depending on the particular facts and circumstances at issue. We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.
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 Available at https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Travel-Advisory.aspx.
 This recommendation does not apply to individuals who cross state or country borders for essential travel, defined as “work and study, critical infrastructure support, economic services and supply chains, health, immediate medical care, and safety and security.”
 The CDPH Travel Advisory from November 2020 recommended a 14-day self-quarantine and discouraged non-essential travel outside a Californian’s home, especially to another state or country.
 https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, FAQ A.9 (last visited on March 2, 2021).