Critical Staffing Issues During a Bioevent Marjorie Fochtman, Esq. Joshua M. Henderson, Esq. Nixon Peabody LLP

Communications with Employees  Drafting a Communicable Disease Policy  Communicating with the ill employee  Communications when a large percentage of the workforce is struck  Communicating the shutdown decision

Communications with Employees  What should be included in a Communicable Disease Policy? Prevention Risk Factors Symptoms Procedures

Communications with Employees  Communicating with the ill employee Balancing the right to privacy versus the need to know  HIPAA  California confidentiality of medical information

Communications with Employees  Communicating with the ill employee Leave rights and responsibilities:  Workers’ compensation  Sick leave / short-term disability  Vacation  FMLA

Communications with Employees  When a large percentage of the workforce is struck Maintaining a healthy workforce while covering key positions

Communications with Employees  When the employer must shut down Communicating the shutdown decision

Wage and Hour Issues for Exempt Employees  Salary basis issues for exempt employees  Exempt employees performing non-exempt work

Wage and Hour Issues for Exempt Employees  Exempt employees must be paid on a “salary basis”  Salary can be docked under only very limited circumstances Full-day absences for personal/vacation leave Full-day absences for sick leave if employee has bona-fide sick leave plan But not for partial-week shutdown

Wage and Hour Issues for Exempt Employees  Consequence of violation: lose exempt status  If exempt employees perform non- exempt work, exempt status may be in jeopardy California 51% rule Workweek analysis

Wage and Hour Issues for Non-Exempt Employees Time and a half: After 40 hours in a week After 8 hours in a day For the first 8 hours on the 7 th consecutive day in the workweek Double time: After 12 hours in a day After 8 hours on the 7 th consecutive day in the workweek Salaried non-exempt: hourly rate is 1/40 weekly salary

Overtime and Other Wage and Hour Issues  Alternative workweek schedules Upon their employer’s proposal, employees may adopt regularly scheduled alternative workweek that authorizes work by the affected employees for no longer than 10 hours per day within a 40-hour workweek without payment of overtime compensation Requires secret-ballot election, approval by at least 2/3 of affected employees in work unit

Overtime and Other Wage and Hour Issues  Physician Compensation: California Labor Code Section If not paid on a salary basis, licensed physicians or surgeons who earn $61.65/hour (as of 1/1/06) or more are not entitled to overtime pay, except employees in a medical internship or resident program, or physicians covered by a collective bargaining agreement

Overtime and Other Wage and Hour Issues  Overtime to cover for absent employees

Overtime and Other Wage and Hour Issues  Required use of time off: Sick leave Vacation / PTO

Leaves of Absence  FMLA/CFRA Issues  Absenteeism

Contingent Workforce and Emergency/Supplemental Staffing  Background checks  Unionized employer – Obligations under Collective Bargaining Agreement

Alternative Workplace Issues  Work from home issues  Travel time for non-exempt employees if longer commute to alternative workplace (outside of home)  Indemnification obligation under Labor Code section 2802 for longer commute

Managing Travel Restrictions  Finding alternatives to getting work done  Teleconferencing, alternative ways to communicate  CDC travel advisories, restrictions

Benefit Programs  Workers’ Compensation  Health Care  Disability Benefit Plans  SDI

Benefit Programs  Paid family leave  EAP programs  Grief counselors

Thank you Marjorie Fochtman, Esq. Joshua M. Henderson, Esq. Nixon Peabody LLP Two Embarcadero Center, Suite 2700 San Francisco, CA Tel: (415) – Fax: (415)