California’s Resilience Roadmap and Guidance to Employers for Stage Two Reopening

18 May

By Susan E. Groff, Cepideh Roufougar, Jonathan A. Siegel, Peter M. Waneis and Cecilie E. Read May 11, 2020

Appellate CourtCalifornia Governor Gavin Newsom has announced a plan to allow the limited reopening of some businesses beyond those in the category of essential critical infrastructure. This limited reopening is part of the “Resilience Roadmap” for California, the multi-phase plan to modify the statewide stay-at-home Order, originally issued on March 19, 2020, in response to the COVID-19 pandemic.

On May 4, 2020, the Governor issued an executive order directing Californians to continue to obey state public health directives. It also indicated the state was moving toward Stage Two, which would allow the reopening of “lower-risk businesses and spaces.”

The State Public Health Officer was directed to establish criteria and procedures to determine whether and how local jurisdictions may implement public health measures that depart from the statewide directives. This means that some counties and localities may be permitted to reopen businesses more quickly if certain benchmarks are met.

The following must be achieved by counties in order to move beyond the initial parts of Stage Two:

  1. No more than one new COVID-19 case per 10,000 people for 14 days.
  2. No COVID-19 deaths in the county for 14 days.
  3. Testing capacity to conduct 1.5 daily tests per 1,000 residents.
  4. At least 15 contact tracers per 100,000 residents.
  5. Ability to temporarily house at least 15 percent of county residents experiencing homelessness.
  6. Ability to accommodate at least a 35-percent surge in COVID-19 patients in local hospitals, in addition to usual care for non-COVID-19 patients.
  7. Skilled nursing facilities must have at least a two-week supply of personal protective equipment for workers. They also must have the ability to obtain more as supplies run low.

On May 7, the State Public Health Officer stated she would “progressively designate sectors, businesses, establishments, or activities that may reopen with certain modifications based on public health and safety needs.” She indicated she would be announcing these sectors and business on the state website roadmap site: https://covid19.ca.gov/roadmap/. In addition, she stated that to the extent such sectors are reopened, “Californians may leave their homes to work at, patronize, or otherwise engage with those businesses.”

Clothing stores, florists, bookstores, sporting goods stores, manufacturing businesses, and warehouse facilities were allowed to reopen on May 8, as the state moves into the first part of Stage Two. Retail establishments were limited to curbside pickup only.

In conjunction with allowing these reopenings, the state has issued guidance for businesses to follow if permitted to open. Before reopening, all facilities must:

  1. Perform a detailed risk assessment and implement a site-specific protection plan.
  2. Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have symptoms.
  3. Implement individual control measures and screenings.
  4. Implement disinfecting protocols.
  5. Implement physical distancing guidelines.

In addition to these general mandates, the state issued industry-specific guidance and checklists. Currently, the state has issued industry-specific guidance for the following sectors:

  1. Agriculture and livestock
  2. Auto dealerships
  3. Childcare
  4. Communication infrastructure
  5. Construction
  6. Delivery services
  7. Energy and utilities
  8. Food packing
  9. Hotels and lodging
  10. Life sciences
  11. Logistics and warehousing facilities
  12. Manufacturing
  13. Mining and logging
  14. Office workspaces
  15. Ports
  16. Public transit and intercity passenger rail
  17. Real estate transaction
  18. Retail

The Resilience Roadmap provides that these guidelines are to assist with ensuring a safer environment for workers and customers. Businesses may use effective alternative or innovative methods to build upon the guidelines.

Businesses looking to reopen should review any industry-specific guidance, prepare their reopening plans, and post any applicable checklist in the workplace in order to show customers and employees the business is actively working to help reduce and prevent the risk of spread of COVID-19.

As employers in Stage Two determine how to comply with recommendations and requirements under the state guidance, business owners should also review city and county shelter-in-place orders. Many county and city orders are currently more restrictive than the state’s amended order. Following issuance of the state’s guidance, many counties reiterated the requirements under their orders. In addition, many counties and cities have their own social distancing protocols for businesses that are open. Businesses seeking to reopen should ensure compliance with both state and local requirements.

As California continues to follow its roadmap, employers should monitor guidance and best practices to ensure safety for their employees.

Cal/OSHA Updates Its COVID-19 IIPP Guidance

By: Thomas B. Song Carothers DiSante & Freudenberger LLP © 2020

Cal New Update

Yesterday, Cal/OSHA greatly expanded its IIPP guidance pertaining to the hazard of COVID-19 in the workplace.  Employers who have not reviewed and updated their IIPPs to address COVID-19 should do so now.

Prior to yesterday, Cal/OSHA’s only guidance concerning IIPPs in relation to COVID-19 consisted of a general statement/reminder that employers are required to have an IIPP to protect employees from workplace hazards and that employers should determine if COVID-19 is a hazard in their workplace.  If so, employers must implement measures to prevent or reduce infection hazards and provide training on those measures.

Yesterday, Cal/OSHA updated its guidance on COVID-19 and IIPPs.  That guidance now states that, “For most California workplaces, adopting changes to their IIPP is mandatory since COVID-19 is widespread in the community.”  (Emphasis added.)

Cal/OSHA replaced their previous general guidance (consisting of two bullet points) with an extensive list of particular “infection prevention measures” and training topics.  Cal/OSHA specifically states to “include [those] infection prevention measures in a written IIPP when applicable to the workplace.”

However, since almost every listed infection prevention measure applies to most workplaces, does that mean that employers are now required physically to write down every measure in their IIPPs?  The most likely answer is “No.”  The required minimum elements of a written IIPP are already governed under Title 8, CCR 3203(a).  Therefore, without formal or emergency rule making (and appropriate notice and comment periods for the public), Cal/OSHA cannot, sua sponte add additional written requirements to the IIPP standard.

However, just because OSHA may not be able to cite you directly for failing to include all their applicable precautions in your written IIPP, that does not mean they cannot find other ways to find your IIPP ineffective.  In other words, it is assumed that should an employer’s IIPP be under review – for a COVID-related issue or otherwise – Cal/OSHA will use their listed infection prevention measures as a benchmark to gauge the effectiveness of an IIPP as it relates to COVID-19.

Therefore, while employers may not legally be required to list every single applicable Ca/OSHA precaution directly in their written IIPPs, it makes good sense to do so, or at a minimum, to be sure that you are actually implementing these precautions in the workplace.

Limits to Conducting Background Checks on Job Applicants

May 8 2020 – HRWatchdog

Background Checks

Several disclosure requirements and procedural steps are incumbent on both employers and the investigative consumer reporting agencies.

My company uses a background check company to conduct background checks on our applicants. Recently, I received a report that included a felony conviction from 1995. I thought there was a limit on how far back we could look for criminal convictions. Can I consider this conviction in making my hiring decision?

There are both state and federal laws that restrict how a background check can be conducted, and what type of information can be provided in a background check report.

The federal Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRAA) both restrict what background check companies (referred to in the statutes as “investigative consumer reporting agencies”) and prospective employers can and must do with regards to information on individuals who are applying for jobs.

Disclosure Requirements

There are a number of disclosure requirements and procedural steps incumbent on both employers and the investigative consumer reporting agencies.

In addition, and most relevant to your question, the ICRAA limits the type of information the investigative consumer reporting agency can provide to the prospective employer.

With regards to records of arrest, indictment or conviction of a crime, the investigative consumer reporting agency may provide information that is no more than seven years from the date of “disposition, release, or parole” (California Civil Code Section 1786.18(a)(7)).

Timing

In your particular situation, although the conviction is from 1995, the investigative consumer reporting agency may be legally entitled to provide you the information if the applicant was released from prison within the last seven years.

You will need some additional information from the background check company to be certain that it was legally authorized to provide you with that information.

The statutes don’t specifically prohibit an employer from considering information that is beyond the limits of what an investigative consumer reporting agency is allowed to provide; however, before considering such information in making your hiring decision, we would suggest consulting your own legal counsel.

Attend Our Covid-19 Prevention Update

11 May

May The Bottom Line

ZOOM SESSION – MAY 14, 2020
Time: 10:00 a.m. PST  

Meeting ID: 839 6272 6013

Password: 192985

One tap mobile

Find your local number:

https://us02web.zoom.us/u/keG7mQWQSF 

Our Three Speakers & Topics:

  

Cindy Williams:
Session: 15 minutes 
DISCUSSION TOPIC:
Hazard Inspections in Various Work Environments, PPE
CalWorkSafety & HR is Now
Providing Virtual Inspections

Wendy Garcia: 
Session: 15 minutes 

DISCUSSION TOPIC:

How to develop a written COVID-19 Exposure Prevention, Preparedness, and Response Plan for your Company.
The purpose of this plan is to outline the steps that every employer and employee can take to reduce the risk of exposure to COVID-19.  Discussion of the elements of a well-designed plan and the importance of understanding and complying with local, State and national Health Orders. Discussion of the use of Employee Health Screening methods to monitor for COVID-19. The Consultants at CalWorkSafety & HR are available to assisting in writing plans to be specific to each unique business.
Judy Lindemann:
Session: 15 minutes 
DISCUSSION TOPIC:
The Power of Cough: Education and How We
Arrived at Six Feet Social Distancing; How Covid-19 Is Transmitted to Your Employees and what your Business Can Do to Protect Your Employees
Keeping Electronics Clean and
Types of Covid-19 Testing

 

CalWorkSafety & HR Consultants
We Train Your Staff … Visit Your Company …
Audit Your OSHA Injury Records … and much more.
Please Contact Us:  email: dondressler1@hotmail.com

Stage 2 of Reopening California Businesses Starts Friday

11 May

By Alix Martichoux

Stage TwoMonday that the next stage of reopening California’s economy will begin as early as Friday. Some businesses included in the state’s “Stage 2” of reopening will be allowed to resume operations starting Friday, including book stores, clothing stores, toy stores, florists and others.

SAN FRANCISCO (KGO) — Gov. Gavin Newsom announced Monday that the next stage of reopening California’s economy will begin Friday, May 8, 2020.

Some businesses included in the state’s “Stage 2” of reopening will be allowed to resume operations starting Friday, May 8, including bookstores, clothing stores, toy stores, florists and others. Associated manufacturers that support those retail supply chains will also be allowed to resume production.

Those businesses will be allowed to reopen for curbside pick-up, given they follow additional safety and hygiene protocols that will be released Thursday, Newsom said.

This step doesn’t include all businesses in the state’s “Stage 2,” Department of Public Health Director Dr. Sonia Angell clarified. At this time, office buildings, dine-in restaurants and shopping malls will not be allowed to reopen. (The state’s full four-stage plan to reopen is outlined below.)

Newsom emphasized that local officials still have the authority to accelerate or slow down reopening at the county level.

“We are not telling locals that believe it’s too soon, too fast to modify. We believe those local communities that have separate timelines should be afforded the capacity to advance those timelines,” he said, citing the Bay Area’s “stricter guidelines.”

“If they choose not to come into compliance with the state guidelines, they have that right,” the governor said.

More rural or remote counties with fewer COVID-19 cases will also be allowed to reopen businesses sooner, the governor said, as long as their decisions don’t risk the “the health of the entire state.”

The state is working to create guidelines that will allow restaurants and other hospitality businesses to open their doors again, as well.

“This is a very positive sign and it has happened for only one reason: the data says it can happen,” said Newsom. “But we recognize as we begin to modify … possible community spread will occur. If that is the case, and we don’t have the capacity to control that spread, to track that spread, to isolate individuals that may have been in contact with COVID-19, we will have to make modifications anew.”

The state plans to reopen those sectors in four stages, as described by Dr. Angell:

Stage 1: Everyone is either staying at home or a member of the essential workforce. This is the stage we are in now, and will stay in until a modification to the statewide stay-at-home order.

Stage 2: Reopening lower risk workplaces, including:

  • Non-essential manufacturing (toys, furniture, clothing, etc.)
  • Schools
  • Childcare facilities
  • Retail businesses for curbside pick-up
  • Offices where working remotely isn’t possible, but can be modified to make the environment safer for employees

Stage 3: Reopening higher risk workplaces, which require close proximity to other people, including:

  • Hair salons
  • Nail salons
  • Gyms
  • Movie theaters
  • Sporting events without live audiences
  • In-person religious services (churches and weddings)

Stage 4: Ending the stay-at-home order, which would allow for the reopening of:

  • Concert venues
  • Convention centers
  • Sporting events with live audiences

 

New Model COBRA Notices and Emergency Extensions to COBRA Deadlines Require Employers to Take Action

By Brian M. Johnston and Keith A. Dropkin on May 4, 2020 Jackson Lewis PC

The Department of Labor (DOL) and other federal regulators released updates and clarifications related to employee benefits, including updates to model COBRA notices and an extension of certain statutory deadlines intended to minimize the possibility of participants and beneficiaries losing benefits during the COVID-19 pandemic. This article highlights the DOL’s recent changes and updates relating to Consolidated Omnibus Budget Reconciliation Act (COBRA).

Updated COBRA Notices

CobraOn May 1, 2020, the DOL released the first updates to its model COBRA Notices since 2014. The models are for the (i) general or initial notice (provided to employees and covered spouses within the first 90 days of coverage under the group health plan), and (ii) the election notice (provided to qualified beneficiaries within 44 days of the qualifying event resulting in a loss of coverage). The notices inform plan participants and other qualified beneficiaries of their rights to health continuation coverage upon a qualifying event. The release of these updated model COBRA notices is an important reminder for employers to ensure that plan participants receive timely and adequate information about their COBRA rights.

More Information about Medicare:  The primary update to the DOL model notice is a new Q&A section, “Can I enroll in Medicare instead of COBRA continuation coverage after my group health plan coverage ends?”, with similar content in a companion FAQ about COBRA and Medicare options.

Risk of Noncompliance

Employers do not have to use the model notices, however the DOL considers using the model notices, appropriately completed, to be good-faith compliance with COBRA’s notice content requirements. Our firm recently discussed the rapid expansion of class action litigation against employers that issued COBRA election notices that failed to follow the DOL model notice in detail. We strongly recommend that employers use the updated DOL COBRA notice forms (or some enhanced version of such notices).

If the updated model notices are not used, the employer should ensure that their COBRA notices include the most current information from the DOL. Because of the significant exposure for COBRA noncompliance, and because employers retain liability for COBRA compliance even if a third-party vendor is hired for COBRA administration, employers should have their COBRA notices regularly reviewed.

COBRA Deadline Extensions

On April 29, 2020, the DOL and Internal Revenue Service (IRS) issued a Joint Notice extending certain time frames affecting a participant’s right to continuation of group health plan coverage under COBRA after employment ends. Normally, a qualified beneficiary has 60 days from the date of receipt of the COBRA notice to elect COBRA, another 45 days after the date of the COBRA election to make the initial required COBRA premium payments, and COBRA coverage may be terminated for failure to pay premiums timely. A premium is considered timely if paid within a 30-day grace period.

The Joint Notice extends the above deadlines (and many other participant-related deadlines such as HIPAA special enrollments, claim appeals and external review filings) by requiring plans to disregard the period from March 1, 2020, until 60 days after the announced end of the National Emergency (known as the “Outbreak Period”).

Election Period Extension:  once a participant receives his or her timely COBRA election notification, the applicable COBRA deadlines are now extended until after the Outbreak Period ends. For COBRA election purposes, this means if a qualifying beneficiary receives the election notice on or after March 1, 2020, the 60-day initial COBRA election period does not begin until the end of the Outbreak Period. The participant then has another 45 days after that to make the required COBRA premium payments (that still apply back to the date on which previous employer coverage ended). The more time provided to qualified beneficiaries to elect and pay for coverage retroactive to the date coverage is lost, the greater the opportunity to game the system.

As an example, if the National Emergency period is proclaimed to end on May 31, 2020, the “Outbreak Period” will be deemed to end on July 30, 2020.  If an employee was provided a COBRA election notice on April 1, 2020, that person’s initial COBRA election deadline will be extended from the original deadline of May 31, 2020 (the 60th day from date of receipt of COBRA election notice) to a new COBRA election deadline of September 28, 2020 (i.e., 60 days from the end of the Outbreak Period).  That individual then has 45 more days to make the first COBRA premium payment for all coverage back to the original date of coverage loss.

Premium Payment Extension:  Likewise, for individuals already on COBRA, the deadlines to make required monthly premium contributions are extended until 30 days after the end of the Outbreak Period, and the guidance makes clear that an employer or health insurance carrier cannot terminate coverage or reject any claims for nonpayment of premium during this period. Such coverage termination can only occur if the individual fails to make all the required monthly premium contributions at the end of the Outbreak Period.

For example, an individual previously elected COBRA and has been paying monthly COBRA premiums since March 1, 2020. That individual does not pay applicable monthly COBRA premiums for April, May, June, or July. Under the extension guidance, the Plan must allow the individual until 30 days after the end of the Outbreak Period (or, August 29, using the dates from the prior example) to fully pay all prior months of COBRA premiums to maintain the COBRA coverage.  Health plans and insurance carriers are burdened with holding all claims submitted during the extension period to know whether coverage will or won’t be paid as required.

Employer COBRA Notice Period Extension:  The Joint Notice potentially also allows plans, plan administrators, and employers to have extra time to provide the COBRA election notice but the guidance is unclear about how that extension period applies. Until further guidance is issued to add clarity, we recommend that employers, other plan sponsors and administrators continue to send the COBRA election notices based on existing law and rely on the extension only if necessary.

Complications will likely result under this new guidance, and thus we strongly recommend working with COBRA administrators to ensure proper compliance is maintained throughout the Outbreak Period and beyond.

Participant Options for Coverage

Lastly, the DOL updated its ongoing FAQ guidance for participants to know and understand their health insurance and other benefit rights and coverage options before, during, and after the National Emergency period ends. While this guidance is directed to participants and beneficiaries, employers may also find it instructive to ensure they are providing proper coverage alternatives.

More Information

Employers can find a consolidation of almost all the DOL’s recent COVID-19 related guidance about benefits on its website.

 

Screening and Accommodation Issues Related to Returning to Work

By: Robin E. Largent Carothers DiSante & Freudenberger LLP © 2020

Screening For Work

Over the last few weeks, the EEOC has been updating its guidance for employers on handling various COVID-19 issues in the workplace, including on the topics of health screenings and when reasonable accommodation is, and is not, needed.  In some areas, the EEOC’s guidance continues to evolve, particularly on the issue of handling employees who have underlying medical conditions that make them high-risk for COVID-19 complications, but who do not have COVID-19 or COVID-19 symptoms.  This article summarizes the EEOC’s latest guidance on these important return-to-work issues.

Health Screenings

The EEOC has taken the position that temperature screening, symptom and exposure screening, and COVID-testing are all permissible tools for employers to consider when bringing employees back to work.  What if an employee refuses to participate?  According to a recorded webinar provided by the EEOC, the employee can be denied entry into the workplace if an employee refuses to answer screening questions and/or submit to temperature screening.  The EEOC has not directly answered whether an employer may refuse entry to an employee who refuses an actual COVID-19 test (which is more invasive than a health screening questionnaire or a temperature screening).

On the issue of symptom and exposure screening, the EEOC states that employers may ask all employees who will be physically entering the workplace if they have COVID-19, or symptoms associated with COVID-19, or ask if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, cough, sore throat, fever, chills, and shortness of breath.  Additional symptoms may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting. Employers may not ask employees who are teleworking these questions.  Employers may also ask employees who will be physically entering the workplace whether they have been exposed to anyone with COVID-19 or its symptoms.  Employers should not limit the question to whether the employee has been exposed to any “family members” with COVID-19 or COVID-19 symptoms because GINA generally restricts inquiries into the medical conditions of an employee’s family.

Employers who will conduct screening or testing generally should apply the same requirements to all employees entering the workplace, rather than singling out individual employees for screening.  An exception may be if a specific employee is exhibiting symptoms, in which case an employer may inquire if the employee may have COVID-19 and/or if the employee has been tested.  Employees with symptoms may be sent home.

All medical information obtained from an employee and documented must be maintained in a confidential medical file for the employee.  Importantly, if an employer learns that an employee has Covid-19, the employer must protect the confidentiality of that information.  It is permissible to ask the employee which coworkers with whom he/she has been in physical contact and then to notify those workers that they may have been exposed, but the employer generally should not identify the worker with COVID-19 to others.

The EEOC has not yet addressed the permissibility of COVID-19 antibody testing, whether this may be required of all employees, and whether an employee can be denied entry into the workplace without a test.

Is COVID-19 a Disability?

The EEOC states that “it is not yet clear” whether COVID-19 is or could be a disability.  However, employers may prevent those with COVID-19 from entering the workplace because they would pose a direct threat to employee safety.

Employees Who Are 65 and Older

The EEOC states that employers may NOT exclude employees who are 65 and older from the workplace simply because they are in a higher risk group for serious complications from COVID-19.  The EEOC guidance states:  “The Age Discrimination in Employment Act prohibits employment discrimination against workers aged 40 and over. If the reason for an action is older age, over age 40, the law would not permit employers to bar older workers from the workplace, to require them to telework, or to place them on involuntary leave.”

Relatedly, the EEOC states that employers are not required to grant a request to telework by an employee who is 65 or older simply because the employee is in a high-risk group for COVID-19 complications.  (Of course, the employer may voluntarily permit telework in this circumstance.)

Please note that the EEOC’s guidance on this issue may conflict with some state or local shelter-at-home orders, which direct older employees to shelter at home.  Employers need to consider the applicability of these orders and not just ADA/Title VII considerations when making decisions concerning this issue.  If a shelter-at-home order is in place that states that older individuals (defined varyingly as 60+, 65+, and 70+ depending on jurisdiction) should shelter at home, employers should accommodate telework for these individuals while the order remains in effect.  If telework is not feasible for this employee, the employer needs to consider state and local guidance as well as EEOC guidance in determining whether to prohibit the employee from returning to work (e.g. where the employee wants to return to work even though in a high-risk age group).  This poses age discrimination risk under EEOC guidance.  Unfortunately, the California DFEH has not provided its own guidance on this issue for California employers.

Employees With Underlying Medical Conditions

What are employers’ obligations with respect to accommodating employees who have underlying medical conditions that place them at higher risk for serious COVID-19 complications according to CDC guidance?  This is an issue that the EEOC continues to grapple with, having published and then retracted guidance on this issue just yesterday, with a statement that the guidance is being reviewed and will be published at a later date.  For now, the EEOC states that individuals with underlying medical conditions rendering them high-risk may be entitled to reasonable accommodations under the ADA to prevent “direct threat to self.”  Such an employee should request accommodation and the employer has a duty to engage in an interactive process with the employee to determine reasonable accommodations.  The employer can request supporting medical documentation specifying that the employee has a disability that puts him/her at higher risk for severe complications from COVID-19 (remember that in CA, employers may not require specific identification/diagnosis of the underlying medical condition) and that, as such, an accommodation is needed.  Reasonable accommodations may include telework, provision of additional personal protective equipment or enhanced protective measures (for physical presence in the workplace) such as moving the location of an employee’s workspace to allow greater social distancing or protection, and/or elimination of marginal job duties.

Pregnant Employees

The EEOC guidance states that employers are not required to allow pregnant employees to telework or otherwise provide special accommodations for them due to COVID-19 because pregnancy itself is not a disability.  However, if an employee has a pregnancy-related disability for which the employee needs accommodation, the employer should engage in the interactive process and determine whether reasonable accommodation is appropriate.  Additionally, if the employer allows other employees to work from home as an unofficial accommodation, the employer should not treat pregnant employees differently because that may give rise to a pregnancy discrimination claim.

Employees Living With Someone Who Is in a High-Risk Category

The EEOC states that an employer is not required to provide reasonable accommodation to an employee who is living with someone who has a disability that makes the individual high risk for serious COVID-19 illness.  The ADA only requires reasonable accommodation of an employee’s own disability, not those of a family member.

Although an employer is not required to accommodate employees in this situation, employers may wish to voluntarily do so (e.g. provide an unpaid leave of absence or allow telework for a limited period of time) in order to avoid risk of claims/lawsuits and the associated cost of defense.

Personal Protective Equipment Upon Return to Work

If an employer requires employees to wear personal protective equipment in the workplace (e.g. masks, gloves) and an employee reports that he/she has a disability that prevents the employee from wearing the required protective equipment, the employer may have a duty to reasonably accommodate the employee by providing different protective equipment (e.g. non-latex gloves) or allowing an exception from the requirement, possibly with the imposition of different protective measures for that employee.

What About Undue Hardship?

Under established disability accommodation law, employers have a duty to reasonably accommodate employees with disabilities, unless doing so would be an undue hardship for the employer.  Undue hardship generally means “significant difficulty or expense.”  The undue hardship exception remains the law even in the COVID-19 era.  However, the EEOC acknowledges that accommodations that would not have posed an undue hardship pre-COVID may pose undue hardship now due to financial struggles faced by employers and other limitations on staffing.

In assessing whether a particular accommodation poses “significant difficulty,” an employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace.  For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking.  Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions.  If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

In assessing whether a particular accommodation poses “significant expense,” the sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration.  Also relevant is the amount of discretionary funds available at this time – when considering other expenses – and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted).  These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic.  For example, even under current circumstances, there may be many no-cost or very low-cost accommodations.

2020 Heat Illness Standards

23 Apr

April 2020

Temperatures across Southern CA and the San Joaquin Valley will be reaching close to 90 degrees by the end of this week. With temperatures increasing the likelihood of employees falling victim to Heat Illness is high.

Take measures to prevent any employees from being affected by the heat this week and in the upcoming spring and summer months with preventative training.

 

*Monitor Your Local Weather by Phone or News*

California Employers Are Required to Take
These 4 Steps to Prevent Heat Illness:

Training
Train all employees and supervisors about heat illness prevention.
 
Water
Provide enough fresh water so that each employee can drink at least one quart per hour, or four 8-ounce glasses, of water per hour, and encourage them to do so.
Shade @ 80 Degrees
Provide access to shade and encourage employees to take a cool-down rest in the shade for at least five minutes. They should not wait until they feel sick to cool down.
Planning
Develop and implement written procedures for complying with the Cal/OSHA Heat Illness Prevention Standard. Have copies of written standards on hand where employees are working, including remote locations.
 
CalWorkSafety & HR Helps You With Compliance:

Written Plans, Training and other Compliance Issues.

Learn More: email: dondressler1@hotmail.com

California Orders Insurers to Pay Back Premiums Due to Virus

20 Apr

 

Ricardo

Ricardo Lara, California’s Insurance Commissioner

California insurance commissioner Ricardo Lara on Monday ordered insurers in the state to refund some March and April premium payments to policyholders for a range of personal and commercial lines due to COVID-19.

The notice ordered insurers to “make an initial premium refund for the months of March and April” to affected California policyholders as quickly as practicable and no later than within 120 days.

Lines where refunds are required include, commercial and personal auto, workers compensation, commercial multiple peril, commercial liability, medical malpractice and “any other line of coverage where the measures of risk have become substantially overstated as a result of the pandemic,” the notice said.

Insurers can offer premium credits, premium reductions, return of premiums of other “appropriate premiums adjustments” and must report their actions with 60 days, the notice said.

The department will send out a subsequent bulletin to insurers and provide appropriate instructions if the COVID-19 pandemic continues beyond May, the notice said.

The order follows announcements by various auto personal lines insurers and some small business insurers in various states that they would offer premium refunds or discounts to reflect decreases in miles driven and other risk-related changes stemming from the pandemic.

Meanwhile, Chubb Ltd. on Monday announced that small business policyholders whose policies renew between April 1 and August 1, 2020, will receive an automatic 25% reduction in the sales and payroll exposures used to calculate their premium as well as a 15% reduction in premiums for their commercial auto insurance.

In addition, Chubb will purchase $1 million in gift cards from small business clients, which will be donated to healthcare workers and other first responders on the front lines of the pandemic in their communities.

In addition, Selective Insurance Group Inc. on Monday announced it would give commercial and personal auto policyholders a 15% premium credit for April and May related to COVID-19 shelter-in-place orders.

Workers Exposed to COVID-19

By Kurt Rose and Karen Charlson on  April 9, 2020, Littler law firm.

In yet another significant move, on April 8, 2020, the U.S. Centers for Disease Control and Prevention (CDC) published additional guidance for employers regarding safety practices for “critical infrastructure workers” who may have been exposed to a person with a suspected or confirmed case of COVID-19.

Since the onset of COVID-19, many employers are requiring employees who have been exposed, or potentially exposed, to infected persons to remain away from work for 14 days – the CDC’s stated incubation period.  As a result, many employers, including those that perform essential functions, were hamstrung operationally because portions of their workforce remained self-quarantined for two weeks.

New Guidance for Critical Infrastructure Employers

The new guidelines help ease the strain on the country’s critical sectors.  The purpose of the guidance is to ensure the continued operation of critical infrastructure.  The CDC is now advising that critical infrastructure employees who have been exposed to the virus can continue to work, provided they remain asymptomatic.  In order to permit exposed employees to continue to work, the CDC advises that employers should, among other things, adhere to the following practices prior to and during work:

  1. measuring temperature before employees enter the facility;
  2. regular monitoring of asymptomatic employees;
  3. having affected employees wearing a mask/face covering in the workplace for 14 days after exposure (employer-issued or employee-supplied);
  4. having employees maintain social distancing (six feet apart), as work duties permit; and
  5. routinely disinfecting work spaces.

Who is Critical?

As noted above, the new guidance does not apply to all employers that continue to operate through the pandemic.  The CDC has highlighted that the new guidance applies to the following critical infrastructure sector personnel:

  • Federal, state, and local law enforcement;
  • 911 call center employees;
  • Fusion center employees;
  • Hazardous material responders from government and the private sector;
  • Janitorial and other custodial staff; and
  • Workers – including contracted vendors – in food and agriculture, critical manufacturing, information technology, transportation, energy and government facilities.

This list is not exhaustive, however, and leaves much open for interpretation.  In an effort to provide further clarity, the CDC directs employers to the U.S. Department of Homeland Security’s Critical Infrastructure Security Agency (CISA) website for further guidance on sectors and employees that are considered critical.

Interplay with Shelter in Place Orders

In connection with their shelter in place orders, many states and localities have adopted the CISA’s guidelines.  Therefore, employers should pay close attention to whether the type of work they perform falls within a CISA critical infrastructure sector and, similarly, whether the employees who continue to report to work are, in fact, essential. Employers subject to a stay at home order that does not rely on the CISA framework should be careful to evaluate the nature of their operations under the particular order at issue.

Next Steps

The CDC’s new guidelines can help critical infrastructure employers as they continue to navigate the most appropriate ways to maintain operations during this difficult time.  So long as critical employers implement the above-noted recommendations, essential workers who have been exposed, or potentially exposed, may continue working if those workers are not sick.  At the end of the day, however, critical infrastructure employers may choose to follow more conservative protocols with their workforce.

Flash Report: Cal/OSHA Receiving Thousands of COVID Complaints

Published on: April 17, 2020 Cal/OSHA Reporter

Cal Osha

Cal/OSHA’s Division of Occupational Safety and Health has received up to 1,500 complaints about employers alleged failing to provide proper protection during the COVID-19 crisis, according to DOSH Deputy Chief Eric Berg.

The revelation came as stakeholders and Standards Board members pressed Berg, the deputy chief for health, for clarification on Division guidance on personal protective equipment during the virus crisis. The exchange came at the April 16 board meeting, held by teleconference.

Jessica Early, a representative of the National Union of Healthcare Workers expressed concern that DOSH’s interim guidance on PPE for healthcare workers “have undercut respiratory protections.” Taylor Jackson, a lobbyist for the California Nurses Association, asserted that hospitals are “locking up and rationing” respirator supplies.

In response, Berg said the interim guidelines, which align with federal Centers for Disease Control and supercede previous Cal/OSHA guidance on respirators, were only published “because of the extreme shortage that we’re experiencing,” Berg said. “Droplet protections [in healthcare settings] are not sufficient to protect employees,” he added. “Respirators have to be used unless it’s not possible to get fitted respirators due to supply constraints.”

Asked by board occupational safety representative Laura Stock whether DOSH is investigating allegations of respirator stockpiling, Berg affirmed that the Division is doing so. “When we get a complaint or otherwise investigate employers for failing to provide respirators as required,” he said. “We would investigate how many respirators they have coming in, their burn rate and what their stock is.”

Berg’s comment about the crush of complaints came in response to a question from Barbara Bergel, the board’s occupational health representative. She wanted to know whether DOSH has investigated complaints related to non-healthcare workers in hospital settings performing deep cleaning. “We’ve had over a thousand complaints, up to 1,500,” Berg replied. “I’m not aware of all of them.”

To put that number in perspective, for the first quarter of 2019, DOSH investigated 488 complaints.

Berg also emphasized that employers covered by the aerosol transmissible diseases standard (General Industry Safety Orders §5199), such as healthcare, have responsibilities under the standard even if they face a respirator shortage. “If they’re low on respirators and they have to switch to non-respirator protections in that circumstance, that is a change in their ATD program. They are required to communicate these issues with employees and their bargaining representatives” and train them, he explained.

Essential and still open industries are required to identify and address COVID hazards through their Injury and Illness Prevention Program. “Given the widespread nature of COVID, it is a hazard in all workplaces that have some sort of contact with people,” he said. “Once they identify that hazard, that requires them to take appropriate action.” That means following Cal/OSHA guidelines “unless there’s something specific that makes it not possible.”

The Division has developed COVID guidelines for general industry, as well as for several specific industries.

Guide to Safety/Health Requirements During COVID-19 Outbreak

13 Apr

Outbreak

Apr 7 2020 – COVID-19 (Coronavirus), Health and Safety – HRWatchdog

Cal/OSHA has compiled and posted extensive guidance recommendations and requirements from many sources to assist the employer during this time.

As an employer, where can I find safety and health information about the coronavirus (COVID-19) outbreak that is affecting my ability to do business?

The state Division of Occupational Safety and Health (DOSH), commonly known as Cal/OSHA, has developed a website compiling relevant information explaining an employer’s methods and responsibilities for maintaining a safe and healthful workplace during the COVID-19 pandemic.

Since our introduction to COVID-19 in early January, the public has been increasingly inundated by various prognosticators as to what is happening and the best way to survive in the environment where we now find ourselves.

Fortunately, even when it appears that chaos is the norm, there are individuals and groups who are practical, logical and patient enough to research and develop interim solutions to mitigate to the best extent humanly possible with existing information the situation that is occurring.

Extensive Guidance

Cal/OSHA has compiled and posted extensive guidance recommendations and requirements from many sources to assist the employer during this time.

To access the guidance on requirements to protect workers from coronavirus, start at the Department of Industrial Relations website, and click on the bold banner declaring “Cal/OSHA Safety Guidance on Coronavirus.” This opens to a webpage containing a table of contents of websites for various areas that may or may not be applicable to your particular situation.

There are two references to “General Industry.” The first, Cal/OSHA Interim Guidelines for General Industry on 2019 Novel Coronavirus Disease (COVID-19), is the reader’s digest version. It details the employers covered and not covered by the Aerosol Transmissible Diseases Standard and reminds webpage visitors of other Cal/OSHA regulations — such as the Injury and Illness Prevention Program (IIPP) — that apply to all employers.

The second reference is a link to download and print a PDF brochure providing some of the information covered on the webpage.

On the “Cal/OSHA Interim Guidelines” webpage is a link to the Centers for Disease Control and Prevention (CDC), which offers considerably more detailed recommendations on its Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019.

Both the Cal/OSHA and CDC interim guideline pages contain website references that should be reviewed for information that may be relevant to your industry.

Note that the interim guidelines are subject to change.

Also, the Cal/OSHA webpage includes a link to the daily update page for the California Department of Public Health.

Model Policies and Forms for the New Emergency Paid Sick and Paid FMLA Leave? Here are the Details

FMLA

By Jeff Nowak on April 9, 2020  Littler Law Firm

Under the Families First Coronavirus Act (FFCRA), employers with fewer than 500 employees are required to provide paid sick leave (EPSL) and paid FMLA leave (FMLA+) for certain reasons related to the Coronavirus pandemic. The law went into effect April 1 and its obligations continue through December 31, 2020.

Employers need policies and forms to comply with this new law.

We now have these policies and forms ready for you.

Why Do You Need a New Policy and Forms to Comply with this New Law?

This new law is fraught with compliance issues for employers.  Take, for instance, these risky scenarios for employers that do not document an employee’s leave request:

  • Your employee, Johnny, does not have symptoms of COVID-19 but insists that he needs to take off work to avoid any exposure. Is he eligible to take EPSL? If you and Johnny later dispute the reason for his need for leave, do you have a leave request form from Johnny to back up your story? Nope.
  • One of your employees, Betty, sought FMLA+ for a COVID-19 related reason, but a dispute later arises over whether you improperly denied her intermittent leave to care for her child whose school was closed. You recall that she requested continuous leave, but you have nothing in writing confirming that fact.
  • You require your employee, Gnarls, to exhaust his employer-provided PTO at the same time he is taking EPSL. After the fact, he claims that he did not give you approval to burn his accrued paid leave at the same time he was taking EPSL .  You recall him telling you to apply his accrued leave, but you have nothing in writing to confirm. Is this a violation of the law?

This hastily-drafted law is a mess, and it undoubtedly will create liability for employers that fail to document the employee’s request for EPSL or FMLA+.  Employer compliance is made even more difficult because the Department of Labor has made clear that it will not be publishing model policy language or model forms for employers to use for EPSL or FMLA+.

This creates significant compliance risks.

Employers undoubtedly want to make their employees aware not only of their leave entitlement under this new law, but also the expectations for requesting and taking EPSL or FMLA+. Additionally, it also is critical that employers obtain in writing their employees’ request for leave, including whether they are requesting intermittent leave (and why), whether they want other forms of paid leave to run instead of or concurrently with EPSL and FMLA+, among other important issues.

Wage and Hour Considerations for Remote Workers

Apr 10 2020 – COVID-19 (Coronavirus), Exempt/Nonexempt – Bianca Saad

Wage

Pet co-workers have fewer wage and hour obligations.

How do an employer’s pay obligations differ when an hourly/nonexempt employee is working remotely from home?

It’s important to keep in mind that when having a nonexempt employee work remotely, your obligations under California’s wage and hour laws remain the same, and you need to ensure you have measures in place to maintain accurate records of the employees’ hours worked.

In addition to accurately tracking all hours worked by your nonexempt remote employees, it’s critical to ensure they take required meal and rest breaks, get paid for any overtime hours and are not engaging in “off-the-clock” work (there is no such thing in California).

Establishing a remote work/telecommuting policy is a great way to communicate your expectations to your remote employees, particularly when it comes to keeping an accurate record of their hours worked, including overtime, as well as taking their appropriate meal and rest breaks.

In addition to having a telecommuting policy, you may choose to have your remote employees sign a telecommuting agreement, acknowledging their work schedule and other parameters within the telecommuting policy itself, such as whether they need approval to work overtime.

Accurate Timekeeping

Many employers already use some type of software that allows them to accurately record hours worked by an employee, and this should be no different for an employee working remotely.

By making sure your remote employees have access to your software or timekeeping system on their remote devices, you can accurately track and monitor your remote employees’ daily and weekly hours worked.

Meal and Rest Breaks

In California, nonexempt employees’ uninterrupted meal break of at least 30 minutes must begin no later than 4 hours and 59 minutes into their shift. Additionally, a nonexempt employee whose total daily work time is at least 3.5 hours must be permitted a rest break of at least 10 “net” minutes for every four hours worked, or “major fraction thereof.”

Because remote employees aren’t supervised in the same way that an on-site employee is, there can be some added challenges to monitoring breaks; however, having a clearly written meal and rest break policy can help combat those challenges.

In addition to your standard meal and rest break policy, your telecommuting policy can reiterate that employees are expected to take their uninterrupted, off-duty meal and rest breaks.

Overtime

In addition to ensuring that your remote employees take their meal and rest breaks, you also need to track and pay for any overtime hours worked.

As a reminder, California law requires all overtime hours to be paid (1.5 times the employee’s regular rate of pay for all hours worked beyond 8 hours in a workday or 40 hours in a work week), even if that time was not approved.

Having a clearly written telecommuting policy and agreement in place can help you to manage your remote employees’ work schedules and expectations regarding overtime.

Business Expenses Reimbursements

Employers must reimburse employees (whether nonexempt or exempt) for all “necessary expenditures or losses incurred” in the performance of their job duties (Labor Code Section 2802). This could include an employee’s personal cell phone, computer equipment and other services and/or supplies required for a remote employee to work.

When looking at whether an employee is entitled to reimbursement, the question will be whether it is “necessarily incurred.”

A clearly written telecommuting policy can help establish guidelines surrounding which expenses are reimbursable, as well as provide a method for employees to submit for reimbursement. Another approach might be to provide all necessary equipment for a remote worker, such as computers/laptops, printers and a phone — which could eliminate or reduce an employee’s need to use personal devices.

Bianca Saad, Employment Law Subject Matter Expert, CalChamber

No SHUT DOWN Order for All Employers!

20 Mar

Attention Orange County Businesses…

NO “SHUT DOWN” Order for All Employers!

Businesses Restrictions Have Been Placed on Restaurants and Bars

Less than six hours after ordering non-essential businesses to close, the OC Health Officer clarified its OC Health Officer Initial Order – March 17, 2020. For details please refer to the attached documents:

“Today’s order from County Health Officer Dr. Nichole Quick is NOT an
order to shelter in place. It is not a lockdown. It is important for all
Orange County businesses to remain open while practicing social
distancing consistent with the Governor’s guidance. However, following
State guidelines, all bars and other establishments that serve alcohol
and do not serve food shall close. All restaurants and other business
establishments that serve food shall close all onsite dining. Pickup,
delivery and drive thru services may remain open. It is important
for all Orange County residents to read the order in its entirety.”
Unfortunately, the order as issued caused wide-spread confusion.
To provide additional clarity requested by Orange County residents and businesses, the County will be issuing an amended Health Officer’s Order.
Watch Our Updates to Stay Informed on  
The Latest State and County Laws & Orders
Our Consultants Are on Standby to Help You!
Contact:
 
Contact Corrine Judisch at cjudisch07@gmail.com or 562-900-1763