California Releases ‘Employer Playbook for a Safe Reopening

4 Aug

Jessica Mulholland July 27, 2020 Cal Chamber

On July 24, 2020, when the reported number of COVID-19 cases in California surpassed 425,000, Governor Gavin Newsom announced a new playbook — called the “Employer Playbook for a Safe Reopening” — to guide employers on how to provide a safe and clean environment for workers and customers to reduce the risk of spreading COVID-19.

“We want to continue to work in the spirit of collaboration and partnership with our employer community to educate,” Newsom said during the press conference, “not only employers large and small, but to help them educate employees as well.”

The 32-page Employer Playbook for a Safe Reopening includes a compilation of industry-specific guidance, checklists and tools to help employers open safely and mitigate risks associated with COVID-19.  

As previously reported and in accordance with the Governor’s resilience roadmap and industry guidelines, the playbook also specifies that before reopening, all facilities must:

  1. Perform a detailed risk assessment and create a work site-specific COVID-19 prevention plan.
  2. Train workers on how to limit COVID-19’s spread, which includes how to screen themselves for symptoms and when to stay home.
  3. Set up individual control measures and screenings.
  4. Put disinfection protocols in place.
  5. Establish physical distancing guidelines.
  6. Establish universal face covering requirements (with allowed exceptions) in accordance with California Department of Public Health (CDPH) guidelines (for further guidance on enforcing mask requirements, see Appendix A).

The state’s COVID-19 website for industry guidance recommends that businesses review the playbook guidance that’s relevant to their workplace, make a plan and put that plan into action. It also recommends posting your completed checklist “so everyone can know the steps you’ve taken” and to feel free to add more safety measures to the ones listed in the playbook.

Additional guidance released recently includes for services that can be provided outdoors, like hair, nail and massage services, and for outdoor dining, all in counties that have been on the Monitoring List for three consecutive days; and the CDPH issued guidance on the use of face coverings, which requires people to use face coverings when in public or common spaces. 

“Stopping the spread of COVID-19 depends on keeping our workers safe,” Newsom said in a press release. “The vital work they do every day puts them and their families at higher risk for exposure and infection. Taking action to protect them will help protect all Californians.”

Jessica Mulholland, Managing Editor, CalChamber

A Vaccine is Coming: Can Employers Require Employees to Take it?

Tuesday, July 28, 2020

As clinical trials continue across the world for a COVID-19 vaccine, many employers are asking whether they will be able to require employees to take the vaccine when it becomes available in the United States. Like with so many questions surrounding COVID-19, the answer is not entirely clear.  In general, employers can require vaccination as a term and condition of employment, but such practice is not without limitations or always recommended. 

The U.S. Occupational Safety and Health Administration (“OSHA”) has taken the position that employers can require employees to take influenza vaccines, for example, but emphasizes that employees “need to be properly informed of the benefits of vaccinations.”  OSHA also explains that “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistleblower rights.”

In March 2020, the Equal Employment Opportunity Commission (“EEOC”) issued COVID-19 guidance specifically addressing the issue of whether employers covered by the Americans With Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) can compel all employees to take the influenza vaccine (noting that there is not yet a COVID-19 vaccine). In responding to this question, the EEOC explained that an employee could be entitled to an exemption from a mandatory vaccination under the ADA based on a disability that prevents the employee from taking the vaccine, which would be a reasonable accommodation that the employer would be required to grant unless it would result in undue hardship to the employer.  Under the ADA, “undue hardship” is defined as “significant difficulty or expense” incurred by the employer in providing an accommodation.   Additionally, Title VII provides that once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship to the employer as defined by Title VII, a lower standard than under the ADA.  Under Title VII, employers do not need to grant religious accommodation requests that result in more than a de minimis cost to the operation of the employer’s business.  However, analogous state laws may impose stricter standards. 

In light of these exemptions and the risk of discrimination, the EEOC has advised that it is best practice to simply encourage employees to take the influenza vaccine rather than to mandate it.   Although we can presume that the EEOC will issue similar guidance when a COVID-19 vaccine is approved, the threat imposed by COVID-19 to the health and safety of others may make employers more inclined to require vaccination. Moreover, this threat and the necessary safety measures required of employers with unvaccinated employees may render exemptions to the COVID-19 vaccine more burdensome.  However, employers must also consider that employees may respond negatively to a vaccination requirement, and adverse reactions to the vaccine could lead to workers’ compensation claims.

Accordingly, employers contemplating any policy mandating a COVID-19 vaccine should be prepared to carefully consider the threat posed to the health and safety of their employees, the risk of future claims, and employee morale.  Moreover, employers must be prepared to carefully consider the reasons for any employee requests for exemptions.

© Polsinelli PC, Polsinelli LLP in California

All Signs Lead to Cal/OSHA Issuing COVID-19 Citations In the (Very) Near Future

Jul 29, 2020  By: Thomas B. Song

Governor Newsom’s televised news briefing on July 24, 2020, provided clues that enhanced enforcement of COVID-19 workplace safety is in the works.  Likely, in response to criticism of the perceived ineffective response to worker protection during COVID-19, labeling Cal/OSHA as a “remote” investigatory agency, staying at home while other workers risk health and safety on a daily basis.

Newsom announced that the spread of COVID-19 disproportionately affected the essential workforce – construction, truck drivers, healthcare and first responders, cashiers, grocery workers, agriculture and farm workers, etc. – and that plans were underway for “targeted” and “strategic enforcement of labor laws”, no doubt from Cal/OSHA. 

The Governor also mentioned the need to call out “bad actors” that give other companies in the industries a bad name.  He also indicated a need to “waive” or modify some timelines associated with regulatory enforcement, noting that it can take over six months to “move an enforcement action.”  While he did not mention a particular enforcement mechanism or jurisdiction, six months is the same amount of time that it takes for an expedited appeal to make its way through the Cal/OSHA Appeals Board process, including the time to issue a decision following an expedited hearing.  Coincidence?  Most likely not.

Cal/OSHA’s July 16th press release urged “all employers in California to carefully review and follow the state’s COVID-19 workplace safety and health guidance to ensure their workers are protected from the virus.”  The new Cal/OSHA Chief, Doug Parker, reinforced that “[e]xisting regulations require employers to implement effective measures to protect employees from worksite hazards, including recognized health hazards such as COVID-19,” and reminded employers that, “[w]e’ve designed guidance documents for more than 30 industries so employers have a roadmap.”

Although not specifically mentioned by the Chief, “existing regulations” is an obvious inference to the Injury and Illness Prevention Program (IIPP) regulation, which (as we’ve already discussed in prior blog articles) requires all employers in California to have effective measures in place to address known hazards in the workplace, including the threat of COVID-19.  (For more information on the IIPP, see CDF’s past articles from earlier this summer [here] and [here].)

Also, unlike the onerous Federal OSHA “General Duty Clause” – which requires a hazard to be “likely to cause serious injury or death” – no such standard is required under California’s IIPP mandate.  An IIPP violation is often a “General-classification,” which only requires a “relationship to occupational safety and health of employees.”  Needless to say, that with all the industry guidance put out by Cal/OSHA, Cal/OSHA will have a strong case against employers that do not incorporate the listed precautions into their IIPPs, or otherwise do not take the COVID-19 guidance seriously. All the signs point to stricter enforcement of COVID-19 workplace safety laws in the very near future, and most likely in the form of Cal/OSHA citations targeted against some of the “bad actors” mentioned by the governor.  California employers, whether essential businesses or not, should take heed of the guidance, incorporate appropriate COVID-19 workplace protections into their IIPPs and train their workforce on protection against COVID-19 as soon as possible.

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