Archive | July, 2020

What Businesses Can Do to Ease the Transition When Reopening Their Doors

28 Jul

As governments start easing stay-at-home orders and other restrictions, businesses that closed their doors to help contain the COVID-19 spread will be permitted to reopen, some sooner than others and most on a gradual basis. Often broad and sometimes inconsistent guidance from federal, state and local governments creates confusion as to when, and to what extent, different businesses can reopen. Even for those that can fully reopen, the staggered and phased reopening of other companies further blurs business outlooks and prospects. It is clear, however, that each business must create new workplace measures and policies to safely and effectively reopen.

The pandemic has impacted nearly all businesses, especially those forced to reduce operations or close completely. Most have never faced situations like those precipitated by COVID-19, and thus, will be navigating unchartered waters both from a business and employer perspective. The ultimate best course of action will differ from business to business. This article highlights some of the key considerations to reopening from a business and employer perspective.

1. Providing a Safe and Healthful Workplace: The Occupational Safety and Health Act (the Act) requires that all employees be given a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm to” employees. The scope of this duty takes on a new meaning in the context of the COVID-19 pandemic. The Occupational Safety and Health Administration (OSHA) has made clear that the Act and OSHA requirements and standards apply to prevent an employee’s exposure to COVID-19 at work. Both OSHA and the Centers for Disease Control and Prevention have issued guidance on steps employers can take to reduce an employee’s risk of exposure to COVID-19 in the workplace. In addition to guidance issued by these agencies, employers should also consider guidance issued by other federal agencies, as well as state and local entities.

The nature of the recommended steps varies based on the risk of exposure associated with the job at issue, with the most stringent recommendations applying to those jobs classified as very high risk, such as certain health care and morgue jobs. Employers should consider the following actions to ensure the safety and well-being of workers:

  • Determine appropriate Personal Protective Equipment for workers, such as face masks, face shields, gloves, gowns and goggles.
  • Enhance cleaning and sanitization procedures for the workplace. Employers should note not only the thoroughness of cleaning but the frequency, with some workplaces requiring cleaning multiple times a day.
  • Maintain social distancing in the workplace, which may involve reconfiguring offices, conference rooms, cafeterias and other common areas; implementing staggered shifts; restricting in-person meetings with clients and customers; and limiting access to the workplace to only those cleared in advance and by appointment.
  • Encourage good personal hygiene in the workplace, which may include making tissues, antibacterial soap and hand sanitizer readily available; promoting frequent hand washing; displaying posters in the workplace to prompt employees to practice good hygiene; reminding employees not to touch their mouth, nose or eyes with unclean hands; and instructing employees to cough or sneeze into a tissue or flexed elbow.
  • Establish a policy setting forth standards to prevent the spread of infectious diseases in the workplace, like COVID-19. This policy may include guidelines for reporting symptoms, diagnosis or exposure to a communicable disease and responses to such reports, such as requiring the affected employee(s) to be sent home or remain at home, contact tracing and isolating affected employees.

COVID-19 is an ever-changing situation, resulting in frequent modifications to applicable guidelines. As a result, employers should regularly monitor guidance issued by federal, state and local entities to remain abreast of current recommendations and best practices.

2. Screening Employees for COVID-19: The U.S. Equal Employment Opportunity Commission’s (EEOC) guidance related to the COVID-19 pandemic indicates that employers may screen employees entering the workplace to determine if they may have COVID-19 without running afoul of the Americans With Disabilities Act. Currently, such screening may include standard questions about symptoms and travel history, measuring body temperature and administering a COVID-19 test before letting an employee enter the workplace. The EEOC emphasizes that the COVID-19 test must be accurate and reliable. All information obtained from the screening must be kept confidential and stored separately from an employee’s personnel file. Some businesses may also consider screening others who enter the workplace, including vendors, customers and other visitors.

3. Transitioning from Home to Office: Businesses starting to reopen will also face the transition of some or all employees from home back to the office. Given the nature of the pandemic, it is unlikely that requiring all employees to return to the office once doors reopen will be workable for logistical and health reasons. Instead, in developing a home-to-office plan, many factors should be considered, including:

  • Whether employees should have the option to continue working from home for some time after reopening
  • Whether certain jobs and employees are more critical to a business’s operations and require a physical presence in the office sooner than other jobs and employees
  • Whether employees who are adequately fulfilling the job requirements from home should continue to work from home for some time after reopening
  • Whether employees who have high-risk conditions or share a household with someone who has a high-risk condition should have the option to continue working from home for some time after reopening
  • Whether employees without childcare should be allowed to continue to work from home or work an alternative schedule at the office until daycares reopen and summer camps become available
  • Whether only a portion of employees should initially return to the office to test new processes, including screening measures and other safety procedures and protocols, and to maintain social distancing
  •  Whether transitioning should take place in shifts, whether on a daily, weekly or another basis

4. Recalling Laid-Off or Furloughed Employees: Employers that furloughed or laid off employees due to COVID-19 may begin to recall them as businesses can reopen and restrictions are lifted. Employers are not required to rehire laid-off employees and may, instead, hire new employees. However, many employers may also choose to rehire their laid-off employees. In addition to changes precipitated by the lifting of restrictions, the Paycheck Protection Program (PPP), which is described below, has also prompted some businesses to recall previously laid-off and furloughed employees. Employers should consider having a written plan to govern the recalling of these employees to mitigate against claims of unlawful discrimination. This plan should be based, to the extent possible, on objective factors, such as jobs needed, years of service, work location and documented performance reviews.

5. Getting Your House in Order: A gradual or staged reopening of markets, businesses and industries means vendors, customers and clients may not be fully operational upon reopening. Take this opportunity to clean up your books and tackle previously neglected administrative tasks. Consider re-organizing or streamlining back-office functions. Doing so will position your company for success once your business ramps up to pre-pandemic levels.

6. Marketing: Your clients, customers and relationships need to know that you are preparing to reopen. Use advertising and social media platforms to inform the public that you are taking the proper precautions and ready to get back to work. Effective and optimistic communication can also reinvigorate your employees and position them for success upon returning to a “normal” work environment.

7. Maintaining Business Contacts: Most businesses are already in contact with their lenders and landlords. Each situation is unique and dependent on your lenders’ and landlords’ willingness to share your cash flow burdens. Still, businesses should request and consider taking advantage of all available relief and extensions on loan payments and rent reduction, deferral or abatement. Be mindful of the unintended tax consequences that could flow from significant loan and lease modifications and consult with your legal and tax advisors during this process.

Identify your most critical vendors, contact them early and keep open lines of communication regarding your ability to pay. Consider requesting discounts or extended payment plans where appropriate and available. Many vendors will have the same cash flow concerns and may be willing to liquidate their accounts receivable at a discount.

8. Conserving Cash: If your business has maintained healthy cash reserves, great! But avoid, where possible, dipping into or exhausting those reserves too soon. The road back to pre-pandemic levels is uncertain and may be prolonged. Instead, take advantage of available loans and grants. Consider liquidating accounts receivable by offering a discount or installment plan to customers and clients who may want to accelerate payment. Focus on utilizing available cash to maintain your workforce, keep your loans and leases in good standing, and preserve relationships with your most critical vendors.

9. Taking Advantage of Available Capital: The highly publicized PPP loan program administered by the U.S. Department of the Treasury (Treasury) and Small Business Administration (SBA) is providing, through banks, low-interest and potentially forgivable loan funds to qualifying businesses. The initial $349 billion of PPP funds was exhausted within 13 days. While Congress authorized an additional $310 billion in PPP funds on April 24, many expect this will soon run out as well. If you can obtain a PPP loan, use these funds for payroll expenses and other designated purposes. Be sure to document those expenses and payments during the measurement period.

If you are ineligible or missed out on PPP, other government-backed loans and grants may be available. Loans and grants are being made available under SBA’s Economic Injury Disaster Loan Program for certain businesses affected by COVID-19. The Treasury and Federal Reserve are also administering the Main Street Lending Program, providing $600 billion in loan funds to qualifying businesses. Many state governments are also providing financial assistance. The Louisiana Loan Portfolio Guaranty Program, for instance, is making low-interest loans of up to $100,000 to help eligible businesses recover from the pandemic. Consider taking advantage of these opportunities and consult with your banker and lawyer to help guide you through the process and advise you on any pitfalls.

COVID-19: Enforcing Mask Rules at Work

By CalChamber  July 13, 2020

Ask Why

While wearing a mask in the workplace is not law, it is recommended by local and state authorities, such as the California Department of Public Health (CDPH), that employees wear masks at work and maintain a distance of six feet from one another. This guidance not only protects customers from the spread of COVID-19, but also helps keep employees healthy and safe in the workplace.

The guidance and orders issued by the CDPH and other government agencies, Shaw tells listeners, is the appropriate reasoning an employer needs to establish a mask and social distancing policy at work.

But what if, Frank asks, an employee is found not wearing a mask?

Shaw says that enforcing mask rules is not about getting people in trouble. As with any other violation, an employer should seek out why the worker is not wearing a mask. Is the reason due to a medical condition or is it a political statement?

If the employee chooses not to wear a mask because of a political stance, Shaw recommends that the employer state that the employee is expected to comply with all of the company’s rules and regulations, and that violations are subject to discipline.

“…Employees have to know [that] even though we are getting some mixed messages in the media and there are some political issues out there, when it comes to your workplace, you have to follow the rules that the employer has set for you as long as those are appropriate rules,” Shaw says.

Moreover, she continues, the employer should communicate that the rules put into place are to keep all employees safe.

Medical Accommodations

If an employee is not wearing a mask because they have a medical condition, the employer should treat it like any other medical accommodation request, but should keep in mind that this situation, is slightly different due to the direct threat to everyone’s health and safety, Shaw explains.

“Just because somebody has a medical condition that precludes them from being able to wear a mask doesn’t mean they get to expose…people to the virus,” she says.

Should a worker have a medical condition that precludes wearing a mask, employers should find ways to maintain safety, such as allowing the employee to telework or finding other ways to get the employee into the workplace, Shaw says.

Shaw compares the situation to having a service animal. Employees with service animals still have to abide by certain rules. For example, a service dog has to behave and cannot relieve itself at work. Similarly, she says, even though an individual has the right to an accommodation, there are going to be limitations on that, especially given the direct threat that not wearing a mask presents.

Set Reminders

Sometimes, the reason an employee is not wearing a mask is simply because they forgot. At work, people are rushing to finish projects, or have to get up to retrieve a document from the printer, or perhaps are hurrying to attend a customer, Shaw says.

Employers need to have grace, she says, and realize that “people are going to make mistakes occasionally.”

Still, it is critical that employers enforce the rules, and they should be transparent about all of the company’s expectations, Shaw says.

Employers should also find ways to remind employees of the mask and social distancing requirements. Employers can buy posters and decals to space out six-foot distances or use masking tape to establish an employee’s work zone.

Inappropriate Graphics

Now that face masks are more widely available, Frank points out that masks have become the new fashion accessory, and masks might contain logos, designs and messages. Can an employer prohibit masks with certain words, imagery or decals?

Similar to a dress code policy, employers can prohibit masks that contain expletives, inappropriate graphics, or messaging that violates the company’s Equal Employment Opportunity Commission (EEOC) policy, Shaw explains.

Although an employer can prohibit masks with messaging altogether, if an employer asks that employees wear only a certain color of mask so that it matches their company’s shirt, then the mask becomes a “uniform” requirement, and the employer will have to provide the mask, Shaw explains.

“So don’t get too specific about the color or the style or the design,” she says. “But you are allowed to say…nothing with a printed message, nothing with an inappropriate graphic or logo or screen print on it.”

In other words, Frank says, it’s back to the basics, “taking COVID out and going back to the basics of what would you do in this circumstance to try to solve the puzzle.”

Shaw recommends employers exercise common sense and remember “our point is workplace safety; we’re trying to keep people safe and healthy.” If employers think about that as being the goal, it helps with what steps they actually take.

Recording, Reporting Work-Related COVID-19 Cases

James W. Ward  July 24, 2020 Cal Chamber

As COVID-19 cases increase in California, more employers are receiving notice of employees testing positive for the virus — but they may not be sure of when to record and report the cases given the amount of guidance issued by numerous agencies and public health officials at every level of government. This brief summary of employers’ obligations when an employee tests positive for COVID-19 should help.

When an employee tests positive for COVID-19, the first thing employers must do is send the employee home and follow the company’s COVID-19 workplace exposure/outbreak plan and applicable health mandates with respect to finding exposed close contacts, notifying and quarantining exposed employees, cleaning protocols, etc. Privacy laws restrict you from disclosing names of COVID-19 positive employees when notifying close contacts of potential exposure; employers must maintain confidentiality. A detailed California Department of Public Health (CDPH) memo guides employers through workplace outbreaks, including quarantine timelines, testing issues, CDC guidance and other topics.

Once that’s handled, the CDPH states that employers should contact their local health department to report confirmed COVID-19 cases in the workplace. The local health department may have specific reporting criteria and requirements. Additionally, if the COVID-19 positive employee lives in a different county/jurisdiction from the workplace, the employer should contact that jurisdiction’s health department.

Employers also must comply with certain recording and reporting requirements of the California Division of Occupational Safety and Health, better known as Cal/OSHA.

Cal/OSHA requires employers to record work-related illnesses on their Log 300 when one of the following things happen:

  • Death.
  • Days away from work.
  • Restricted work or transfer to another job.
  • Medical treatment beyond first aid.
  • Loss of consciousness.
  • A significant injury or illness diagnosed by a physician or other licensed health care professional.

COVID-19 cases could check several items on this list, so employers will likely have to record COVID-19 illnesses on their Log 300.

In its FAQ on the topic, Cal/OSHA states that COVID-19 cases should generally be lab confirmed, but confirmation is not necessary to trigger recording requirements. Due to testing shortages and other circumstances, there may be situations in which an employer must make a recordability determination even though testing did not occur. If the circumstances meet any of the criteria listed above, the case should be recorded. Cal/OSHA says employers should err on the side of recordability, but clarified that “days spent away from work” do not include days spent quarantined.

For recording purposes, an illness is presumed work-related if it results from events or exposure in the work environment, such as interaction with COVID-19 positive individuals, working in the same area or sharing items with COVID-19 positive individuals. Employers should evaluate the employee’s duties, environment and interactions to determine the likelihood the employee was exposed at work.

In some cases, employers may have to report COVID-19 cases directly to Cal/OSHA. Employers must report a serious illness to Cal/OSHA when it is contracted “in connection with any employment” and results in death or hospitalization other than observation or diagnostic testing. So, if an employee becomes ill at work and is admitted to the hospital, the employer must report it to Cal/OSHA immediately, but no later than eight hours after the employer knows about it.

Cal/OSHA guidance states that employers must report the serious illness regardless of whether it’s work-related. Also, employers should report serious illnesses if an employee becomes symptomatic outside of work, as long as there is some cause to believe the illness was contracted in connection with any employment, including, for example, other COVID-19 cases in the workplace, exposure to COVID-19 positive individuals, contact with the public, etc.

Employers may report a serious illness to Cal/OSHA via phone or email.

California Officials Rolling Back Reopening As Coronavirus Surge Creates New Crisis

20 Jul

Tracking Closures

Los Angeles Times, By Rong-Gong Lin IIAlex Wigglesworth July 13, 2020

With the coronavirus death toll in California jumping past 7,000 and cases continuing to surge, more parts of the state are rolling back reopening plans as they try desperately to slow outbreaks and prevent more hospitals from hitting capacity.

California has seen coronavirus cases and hospitalizations skyrocket in the last month as the economy has reopened and residents have gone back to summer socializing. Although the state clamped down by shutting bars and banning indoor dining in many areas, officials described the conditions as critical.

The rate at which COVID-19 tests are coming back positive in California over the previous seven days hit 8.3% on Sunday. That’s the highest percentage since April — a continuing sign that the coronavirus is spreading throughout the state, according to a Los Angeles Times analysis conducted over the weekend.

A week ago, on July 5, the so-called positivity rate over the previous seven days was 6.8%; and the Sunday before that, on June 28, it was 5.9%. The positivity rate in Los Angeles County is even worse than the statewide figure. On Friday, the seven-day positivity rate was 10% in L.A. County; in late May, that rate fell to a low of 4.6%.

Alarmed at the metrics, some Bay Area counties are scaling back.

Officials in Alameda County said they had been informed by the state that outdoor restaurant dining there was no longer allowed and restaurants could only be open for drive-through, pickup or delivery service. Indoor restaurant dining has never reopened in Alameda and several other Bay Area counties.

In Contra Costa County, officials issued an order Saturday prohibiting indoor religious services beginning Monday morning. Outdoor gatherings, including worship services and political protests, will still be allowed as long as rules on face coverings and physical distancing are followed.

Contra Costa County officials said in a statement that more than 8% of its COVID-19 tests were now coming back positive over the previous seven days, “a sign that the virus is spreading rapidly in the county and that the community must take immediate steps to reduce the spread of the coronavirus and prevent our healthcare system from becoming overwhelmed.”

“Contra Costa is especially concerned about the risk of COVID-19 transmission in indoor gatherings, and in gatherings that involve removing face coverings for eating and drinking,” officials said in a statement. Health authorities say they are now “concerned that the number of patients needing intensive care could quickly exceed capacity.”

In Santa Clara County, officials were rescinding part of the region’s relaxation orders that were scheduled to take effect Monday. The county had initially planned to allow indoor gatherings of up to 20 people. But officials now say they will not move forward.

“Our county is at a critical moment,” Dr. Sara Cody, the county’s health officer, said in a message posted Saturday on social media. “Right now, the numbers we are seeing aren’t going in the right direction. … The number of people hospitalized with COVID-19 is growing every day.”

The county is, however, allowing hair and nail salons, massage parlors and gyms to reopen starting Monday, with some strict new requirements not seen in other counties, such as prohibiting the indoor use of cardio machines, such as treadmills, elliptical machines, exercise bikes and other equipment that induces heavy breathing or an elevated heart rate. Officials said there were no plans to reopen bars or indoor dining rooms at restaurants for the foreseeable future.

Over the weekend, state health officials ordered Sonoma and Placer counties to prohibit many indoor businesses, including indoor dining, indoor winery tasting rooms and movie theaters.

Los Angeles County tallied more than 3,200 new cases of the virus Sunday and 14 related deaths, according to the Los Angeles Times’ coronavirus tracker.

With that, the county has now recorded more than 133,000 confirmed cases and more than 3,800 deaths. That means L.A. County residents account for 54% of the state’s coronavirus-related deaths, despite making up about one-quarter of the state’s population.

Hospitalizations also continue to climb, both statewide and in L.A. County.

As of Saturday, there were 6,322 people with confirmed coronavirus infections in hospitals statewide, a decrease of less than 1% from Friday’s total of 6,357. Saturday’s figure was the second-highest number of hospitalized patients with confirmed viral infections so far in this pandemic.

There were 1,806 people with confirmed viral infections in California’s intensive care units Saturday — tying the record set Friday for the highest such number.

Los Angeles County also recorded a new high in hospitalizations on Friday, with 2,093 people reported hospitalized with confirmed coronavirus infections; that number dropped less than 2% on Saturday, when 2,056 people were confirmed to be in the hospital.

In June, there were an average of about 1,500 patients with confirmed coronavirus infections in L.A. County hospitals.

“We have been battling this virus for several months and I know that ‘COVID fatigue’ is a very real thing,” Barbara Ferrer, the county health director, said in a statement. “I want to encourage everyone to remain vigilant and continue to use all the tools we have to prevent further transmission of the virus.”

Officials said the increase in transmission probably started around the week of Memorial Day and attributed it to more people being in contact with one another due to more workplaces reopening and more social gatherings taking place.

In an attempt to limit the increase, the county partially rolled back its economic reopening on orders from the state. Bars in a number of counties, including Los Angeles, were made to shut down again June 28, and restaurants were also told to stop in-person dining in many counties on July 1.

Of California’s 58 counties, 31 have now been required to close bars and indoor operations of certain businesses, which not only include dine-in restaurants, but also movie theaters, bowling alleys, arcades and museums. The orders affected more than 33 million Californians, or more than 85% of the state’s population.

Meanwhile, L.A. Mayor Eric Garcetti warned that the city could reimpose a mandatory stay-at-home order if conditions continued to worsen.

Vacation Policy Factors to Consider During COVID-19 Pandemic

Vacation Policies

Matthew J. Roberts, Esq.  July 13, 2020 -CalChamber\

A consequence of the prolonged shelter-in-place and stay-at-home orders issued as a result of the COVID-19 pandemic is dramatically reduced travel. As a result, during this time many employees are not taking earned vacation time and may not do so for months resulting in the following question from employers: Can we change our vacation policies as a result of the employees not using their time?

This is a tricky question. Generally, however, employers do have control over their vacation policies subject to certain rules. Below are some common ways in which an employer may address its vacation policies while staying within compliance.

Accrual Caps

California law allows employers to set reasonable caps on vacation accruals. Accrual caps mean that the employee no longer accrues vacation time while they’re at the cap.

Although there’s no set standard on what a reasonable cap may be, commonly caps meet this requirement when they are no less than 1.5 to 2 times the annual rate for employees. This is because employees need to be provided a reasonable opportunity to take all the vacation that they earn within a year.

So, for example, an employee who accrues 40 hours of vacation a year should have a cap of no less than 60 hours before they stop accruing vacation.

Some employers who have already instituted caps want to temporarily increase the cap as a benefit to the employee since there’s little incentive to use vacation during a shelter-in-place order.

Employers may increase or decrease their caps; however, California prohibits “use it or lose it” vacation policies. For example, if an employee has a 200-hour cap, and the employer decided to temporarily increase that cap to 240 for the rest of year, the employer cannot take away any vacation hours in excess of 200 once the employer decides to return the cap to that level.

Cash-Out Policies

California law considers vacation hours to be vested wages. This is why vacation hours must be paid out along with final wages. California law allows employers to cash-out vacation hours; however, the cash-out must be paid at the employee’s current rate of pay.

Unlimited Vacation

Some employers have moved to a new type of vacation benefit where the employee has unlimited hours and the employer no longer tracks accrued hours or pays out any vested vacation wages upon termination.

Employers who have an accrual method may switch to an unlimited one, but again, any hours the employee accrued under the old policy cannot be forfeited.

Also, the law regarding this type of policy is unsettled. Any employer considering switching to an unlimited policy should consult with legal counsel to evaluate the risks.

Required Usage

Employers may require employees to take vacation at certain times of the year. However, internal Labor Commissioner guidance requires that employers provide reasonable advance notice of the requirement. The Labor Commissioner determined that 90 days would constitute reasonable advance notice.

In general, the Labor Commissioner will handle any vacation claims based on the principles of equity and fairness. So, where an employer wants to change its vacation policy, it should keep those principles in mind along with the rules under California law.

Matthew J. Roberts, Employment Law Counsel/Subject Matter Expert

More Time to Apply for Paycheck Protection Program Loans

PPP Loan

By CalChamber  July 16, 2020

Protection Program (PPP) loans to August 8, 2020.

An estimated $130 billion in funding remains for the program, which offers loans to help small businesses with fewer than 500 employees stay in business and keep workers employed.

Employers in need of assistance and who have not yet obtained a loan are encouraged to speak with a lender as soon as possible.

The PPP Extension Act signed on July 4 extends only the loan application deadline and does not expand the program.

Legislation signed on June 5 amended the original PPP and aimed to clarify matters such as how and when the funds should be spent and how to handle re-staffing problems.

The key aspect of the PPP is that the loans provided can be fully forgiven without repayment if the employer meets certain conditions, including spending the funds only on certain costs.

A summary of the June 5 revisions appeared in the June 12 Alert.

Information about the PPP loan, including links to an EZ application requiring fewer calculations and less documentation for eligible borrowers, and the full forgiveness application—both released on June 16—is available on the U.S. Small Business Administration web page about the program, located here.

 

California Governor Re-Closes Numerous Businesses Effective Immediately

14 Jul

Closed to Coronavirus

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

Citing concerns about COVID cases being on the rise in California, today Governor Newsom announced a number of businesses that are being required to close again, effective immediately.  Statewide, the following businesses are required to close indoor operations:

  • Dine-in restaurants
  • Wineries and tasting rooms
  • Movie theaters
  • Family entertainment centers (for example: bowling alleys, miniature golf, batting cages and arcades)
  • Zoos and museums
  • Cardrooms

Additionally, bars, brewpubs, breweries, and pubs must close all operations, both indoor and outdoor, statewide.

On top of these statewide closures, there are additional closures of indoor facilities in 31 different counties for the following services/activities:

  • Fitness centers and gyms
  • Worship services
  • Protests
  • Offices for non-essential sectors
  • Personal care services, like nail salons, body waxing and tattoo parlors
  • Hair salons and barbershops
  • Malls

Here are the counties affected by these additional closures (additional counties may be added to the list in the coming days):

  • Colusa
  • Contra Costa
  • Fresno
  • Glenn
  • Imperial
  • Kings
  • Los Angeles
  • Madera
  • Marin
  • Merced
  • Monterey
  • Napa
  • Orange
  • Placer
  • Riverside
  • Sacramento
  • San Benito
  • San Bernardino
  • San Diego
  • San Joaquin
  • Santa Barbara
  • Solano
  • Sonoma
  • Stanislaus
  • Sutter
  • Tulare
  • Yolo
  • Yuba
  • Ventura

There is no end date specified for today’s new closures.  This is very unfortunate news for California businesses, many of which have already been hit hard by the first round of closures. Today’s Order is available here https://covid19.ca.gov/roadmap-counties/.  Affected employers will need to re-evaluate which operations they need to close and which employees can still be permitted to report to work.  The importance of ensuring that safety protocols are in place and are followed at worksites that remain open cannot be understated.  The same is true of the need for employers to comply with all applicable paid leave laws and to avoid retaliation against employees who raise good faith safety-related concerns.  The flood gates have opened on the COVID-19-related lawsuits already and they are expected to keep coming.

CalWorkSafety & HR, LLC is here to help you evaluate and respond to these orders as they apply to your operations.  Call your consultant or Don Dressler at 949-533-3742

What To Do When an Employee Tests Positive for COVID-19

13 Jul

COVID 19 what to do

By: Robin E. Largent  July 3, 2020 Carothers DiSante & Freudenberger LLP © 2020

We have been getting more and more questions from employers about what to do if they have an employee who reports that they have tested positive for COVID-19.  Cal-OSHA likely has been getting similar inquiries and, as a result, recently issued guidance for employers on the specific topic of handling outbreaks in the workplace.  That guidance is here.  Importantly, Cal-OSHA cautions that even a single positive case may quickly turn into an outbreak among employees.  Furthermore, because workplace circumstances and settings vary greatly, Cal-OSHA recommends that employers contact and consult with their local health department to plan and coordinate a response.

In addition to working with the local health department on specific responses protocols, the employer also must keep in mind Cal-OSHA reporting requirements.  Employers must report serious injuries, illnesses or deaths in the workplace immediately.  Cal-OSHA instructs that for COVID-19 purposes, this means COVID-19 related inpatient hospitalizations or deaths, and employers should report these events even if work-relatedness is uncertain.

Employers must also keep in mind Governor Newsom’s May 6, 2020 Executive Order providing, for workers’ compensation coverage purposes, that any case of COVID-19 contracted between March 19, 2020 and July 5, 2020 by an employee who works outside the home, is presumed to have occurred in the course of employment.  This presumption is rebuttable (e.g. the employee lives with a non-employee who had COVID-19), but the employer does not get to decide whether or not the virus was contracted at work.  The employer should give the employee a work comp form and let the carrier determine coverage.

Although the employer should confer with the local health department on specific protocols for handling a workplace outbreak involving one or more employees, some things that employers will need to consider are the following:

  • Informing coworkers who may have come into contact with the infected employee that an employee (maintain confidentiality of the employee’s identity to the extent practicable) has tested positive;
  • Consider providing COVID-19 testing for other employees.  Remember that if testing is required by the employer, the expense must be paid for by the employer, and the employees must be paid for the time they spend undergoing testing.  Also remember that employees cannot be required to undergo COVID-19 antibody testing, but only testing for active infection.
  • Where testing is not feasible, try to utilize contact tracing to identify those who have had close contact with the infected employee, and advise those close contacts to quarantine at home for 14 days from their last known contact with the infected employee.  If the outbreak involves numerous employees with close contacts with the infected employee, consider closing the worksite temporarily and advising all employees to quarantine.  “Close contact” means spending 15 minutes or more within 6 feet of a COVID-19 positive employee during their infectious period, which includes 48 hours before they became symptomatic.
  • While at home, quarantined employees should monitor for any potential symptoms of COVID-19 (fever, shortness of breath, cough, loss of taste/smell, congestion/runny nose, sore throat, fatigue, chills, nausea/vomiting, diarrhea) and should be encouraged to get a COVID-19 test if they develop symptoms.
  • The work area used by the infected employee(s) must be cleaned and disinfected (and such cleaning and disinfecting of the workplace should be done regularly).
  • Employees who are still reporting to work should not share equipment (particularly equipment that comes into contact with the face or mouth, such as telephones and headsets), and employees must be reminded to follow safety protocols established by the CDF and local guidance (including wearing face coverings and social distancing).  Of course, all employees should be reminded not to report to work with symptoms.

Employers must also follow current guidance on when it is safe to allow an employee who has tested positive for COVID-19 to return to work.  The answer varies depending on whether the employee has symptoms or is asymptomatic.  The answer also varies depending on whether COVID-19 testing is available and utilized.  According to the CDC guidance, if an employee tests positive and has symptoms, the employee may return to the workplace either:  (1) 72 hours after the employee is fever-free (without the use of fever-reducing medicine), AND respiratory symptoms (cough, shortness of breath) have improved, AND at least 10 days have passed since symptoms first appeared; OR (2) after the employee has tested negative for COVID-19 two consecutive times, at least 24 hours apart, and employee is fever-free (without use of fever reducing medicine) and any respiratory symptoms have improved.

If an employee tests positive but is asymptomatic, the employee may return to the workplace (1) after at least 10 days have passed since they tested positive if they still have not developed any symptoms; or (2) after the employee has two consecutive negative COVID-19 tests, at least 24 hours apart.  Cal-OSHA advises that employers defer to their local health department on specific return to work criteria that they should follow.

Of course, any time an employee cannot work due to COVID-19 (testing positive, being ill with symptoms, or being quarantined due to close contact with an infected individual), the employer needs to be sure the employee is informed of paid time off rights and provided with applicable paid time off.  This may include paid sick leave under the federal Families First Coronavirus Response Act (FFCRA) and/or state and local paid sick leave laws.  The cities of San Francisco, Oakland, San Jose, Los Angeles, and Long Beach all have COVID-19 sick leave ordinances that supplement pre-existing paid sick leave and/or apply to employers who are not covered by the FFCRA.  By way of reminder, the FFCRA provides up to 80 hours of paid sick leave to employees who work for private sector employers with less than 500 employees (or who work for a public employer).

If you are an employer with 50 or more employees and you have an employee who becomes seriously ill with COVID-19 (e.g. the employee is hospitalized), keep in mind that this could also trigger a lengthier entitlement to up to twelve weeks of unpaid leave under the FMLA/CFRA.

CA Court Grants TRO in Fast Food Covid-19 Case

On June 16, 2020, several employees at a McDonald’s franchise in Oakland, California filed a lawsuit against their employer, in a matter entitled Hernandez v. VES McDonald’s (No. RG20064825, Superior Court of California, County of Alameda). The lawsuit consists of five plaintiffs, three of whom are employees who allege that they became sick with COVID-19 while working at the restaurant and “unknowingly” spread the disease to family and other members in their communities. The fourth is the infant son of one of the plaintiffs who allegedly contracted COVID-19 from his mother. The final plaintiff is an employee who worked in the same restaurant. At the time the complaint was filed, he had not yet tested positive for COVID-19 but “fears becoming infected and spreading the disease to others.”

The plaintiffs allege causes of action for public nuisance, unfair and unlawful business practices, and violations of Oakland’s Emergency Paid Sick Leave Ordinance. The Oakland lawsuit comes approximately one month after employees at a Chicago-area McDonald’s filed suit alleging that their employer failed to take measures to keep them safe during the COVID-19 pandemic.

COVID-19 as a “public nuisance” is a novel theory being explored by a number of aggressive plaintiffs’ counsel in California. California Civil Code Section 3480 provides: “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”

On June 22, 2020, Judge Patrick R. McKinney of the Superior Court of California, County of Alameda issued a temporary restraining order (TRO). Pursuant to the TRO, the Oakland franchise will remain closed until July 2, 2020, at which point the court will determine whether a preliminary injunction should be issued. The court ordered that the franchise may reopen and resume operations before July 2, pending approval from the Alameda County Department of Environmental Health.

Judge_gavel

Addressing Race Discrimination Complaints in the Workplace

July 6, 2020

Following recent events, employers may experience an increase in the number of race discrimination complaints in the workplace. Many organisations in the United Kingdom, in the United States, and globally have made public statements to reinforce their commitment to racial equality.

General Complaints of Race Discrimination

Not all race discrimination complaints raised in the workplace are from existing or former employees; complaints may be made from individuals outside the organisation relating to the culture of the workplace and may not be specific. Such complaints could be from a member of the public, an external social media platform, or could even be anonymous. It is important that organisations take such complaints seriously. Employers may want to address such complaints promptly and take appropriate action where necessary. Although a complaint may not be specific, employers still may want to investigate it.

A first step may be to explore the allegation with the complainant—if the complainant is known—in more detail to enable a full investigation to be carried out. If that is not possible, a more general cultural investigation may be worthwhile in order to determine if there is any truth behind the allegations. Employers may consider appointing an investigator to speak to a small group of employees about their experiences working for the company and follow up on any issues that may become known. The group of employees could be identified through asking people to volunteer, chosen at random, or individually selected to represent a cross-section of the organisation. The investigator could be someone internal (seen as neutral), or alternatively, an external investigator could be appointed.

Anonymous Complaints

Dealing with anonymous complaints can be difficult for employers, especially when it is not clear as to where the complaints originated. This however, does not mean that complaints should be ignored. Where it is not known if a complainant is external, employers may want to be cautious when sharing details about an investigation or the findings unless the complainant reveals his or her identity. In a situation where contact can be made with the complainant despite his or her anonymity—for example, the organisation receives an email that does not identify the sender—then the complainant may be willing to speak, provided it is on an anonymous basis. In this situation, an employer may want to appoint an impartial person to investigate the allegations, such as an external investigator. Employers may want to assure the complainant that his or her anonymity will be protected and any victimisation will not be tolerated.

How Can Employers Foster Non-discriminatory Workplaces?

Organisations may want to review their non-discrimination and anti-harassment policies (which may be included within a respectful workplace policy) to ensure they include specific examples of conduct that would amount to racial harassment, making sure it is clear that such conduct will not be tolerated. Employers also may want to reiterate that any employee who breaches the organisation’s non-discrimination and anti-harassment policies may be subject to disciplinary action, which could include termination of employment.

Employers also may want to train managers on the policies so that they are competent to handle discriminatory or harassing behaviour that may arise in the workplace.

Employers may want to consider developing a focus group or employee forum to deal with diversity and inclusion issues in the workplace. The purpose of the group/forum would be to form a bridge between employees and senior management to report diversity issues, and a resource to whom employees can address complaints (including anonymous complaints) in addition to human resources.

Employers that take the time to consider the above action points may find they will encourage diverse and inclusive workplaces where all employees feel valued and supported.

Daniella McGuigan is a partner is the London office of Ogletree Deakins.

Addressing Race Discrimination

LA County Changes COVID-19 Guidance

7 Jul

Corona

July 1, 2020 – Jackson Lewis LLP.

NEW- requirement to report if 3 or more employees in a workplace are identified with COVID-19

Los Angeles County has been the epicenter of COVID-19 in California, and it is only getting worse. The Los Angeles County Department of Public Health (LA Department of Public Health) recently announced that daily hospitalizations have been significantly higher than in past weeks. Accordingly, LA County released new and updated guidance to help stop the spread of COVID-19 within the workplace. The guidance includes more stringent employee screenings, requirements to report a cluster of confirmed COVID-19 cases, updates to LA County Reopening Protocols, and requirements that all employees who have regular contact with others wear a face covering or an alternative, regardless of medical conditions.

More Stringent Employee Screenings

LA Department of Public Health has released an Employee Screening form. The form requires employees who have experienced COVID-19 symptoms (defined as fever, chills, cough, shortnerss of breath, or difficulty breathing) within the past 10 days to be sent home immediately. The form otherwise follows CDC guidance in that employees should also be sent home immediately if they: (1) have an elevated body temperature greater than or equal to 100.4ºF or 38ºC or (2) have had any contact with a person with COVID-19 in the previous 14 days.

Employers Required to Report Clusters of Confirmed Cases

LA Department of Public Health has also updated the Protocol for Social Distancing. In the event that three or more COVID-19 cases are identified within the workplace within a span of 14 days, the employer should report the cluster to the LA Department of Public Health at (888) 397-3993 or (213) 240-7821. A case manager will then be assigned to guide the facility response and provide technical support, implement infection control guidances, and provide site-specific control measures. LA Department of Public Health has released a poster containing this information.

LA County Protocols Updated

LA County Reopening Protocols have also been updated to reflect the changes in the Protocol for Social Distancing. For example, the Office Workspaces guidance addresses the more stringent health screenings, the reporting of clusters of COVID-19 cases and information of face coverings, including that employees be instructed to wash their face coverings daily.

Please keep in mind that the changes in LA County protocols directly impact businesses located in the City of Los Angeles as Mayor Eric Garcetti’s “Safer L.A.” Emergency Order relies upon LA County protocols. Thus, it is very important that businesses located in LA County and the City of Los Angeles continue to monitor LA County Reopening Protocols as they are continuously updated. For example, cardrooms, satellite wagering facilities, and racetracks with onsite wagering are prohibited from allowing the consumption of food and/or beverages at gaming tables, and beaches are closed from July 3 – July 6, 2020.

Face Coverings and Medical Conditions

LA Department of Public Health also has released guidance for individuals with medical conditions who are unable to wear a face covering. In the Guidance for Cloth Face Covering, it was explained that “[i]ndividuals who are exempt from wearing a face covering due to a medical condition and who are employed in a job involving regular contact with others must wear an alternative such as a face shield with a drape on the bottom edge.”

What Employers Should Know Now

Many California localities have released guidance and provisions with the intention to reduce the spread of COVID-19. Currently, the risk of spreading the disease is exemplified in Los Angeles County and more stringent standards have been put into place.

California’s Face Mask Requirements Can Help Keep Businesses Open

Face Mask Required

Katie Culliton  June 30, 2020

It’s been almost two weeks since the California Department of Public Health (CDPH) required Californians to wear a cloth face mask when outside the home, with limited exceptions. As cases of COVID-19 rise, it’s becoming increasingly more important to wear a mask to slow the disease’s spread — and ultimately, the face mask requirement helps businesses to stay open during these uncertain times.

In response to California seeing a surge of COVID-19 cases in some counties, the CDPH required seven counties to close their bars immediately and recommended eight other counties do the same. Bars were targeted specifically because these environments lead to reduced compliance of personal protective measures, including use of face coverings, and they require raised voices, which leads to greater projection of potentially infected droplets.

The Centers for Disease Control and Prevention (CDC) reminds us that cloth face coverings help protect people around you and most likely reduce the spread of COVID-19 when they are widely used in public settings. Requiring employees and customers wear face coverings helps prevent the spread of COVID-19, which in turn keeps businesses open.

Remember, California’s June 18 Guidance for the Use of Face Coverings included that Californians must wear a face covering when engaged in work, whether at the workplace or performing work off-site, when:

  • Interacting in-person with any member of the public;
  • Working in any space visited by members of the public, regardless of whether anyone from the public is present at the time;
  • Working in any space where food is prepared or packaged for sale or distribution to others;
  • Working in or walking through common areas, such as hallways, stairways, elevators, and parking facilities; and
  • In any room or enclosed area where other people (except for members of the person’s own household or residence) are present when unable to physically distance.

Individuals are exempt from these guidelines in limited circumstances. California also has industry-specific guidance on reducing the risk of COVID-19, which includes childcare, day camps, delivery services, office workspaces and real estate transactions.

Keep an eye out for updated requirements as the COVID-19 pandemic evolves.

Additional $600 Unemployment Payment Expiration Date Looms Near

Covid 19 Unemployment

By John J. Porta, Hadley M. Simonett, Keerthi Sugumaran and Carolyn A. Trotta

  • June 26, 2020 -Jackson Lewis, PC.

As businesses begin to reopen and many workers return to work, one of the main provisions of the CARES Act, signed into law on March 27, 2020, is set to expire next month. Section 2104 of the CARES Act created the federal Pandemic Unemployment Compensation (FPUC) program, which provides all individuals who receive state unemployment benefits an additional $600 per week for up to four months funded by the federal government. Created as a short-term benefit, the additional $600 FPUC benefit will expire “on or before July 31, 2020.”

The exact expiration date depends on how the state defines the unemployment benefit week. The majority of states follow a Saturday-to-Saturday or Sunday-to-Sunday benefit week for purposes of unemployment compensation. For states whose benefit week ends on a Saturday, the final week FPUC is payable is the week ending July 25, 2020. For states whose benefit week ends on a Sunday, the final payable week is the week ending July 26, 2020.

While the House of Representatives passed an extension of the FPUC benefit in the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, the bill has faced strong opposition in the Senate.

Although the FPUC benefit expires next month, the expanded benefits under the Pandemic Unemployment Assistance (PUA) program are in effect until December 31, 2020. The PUA provides workers who are ineligible for regular state benefits (such as independent contractors) unemployment benefits funded by the federal government. For more information on the PUA program and other benefits under the CARES Act, see our article, President Trump Signs Coronavirus Aid, Relief, and Economic Security Act (CARES).