COVID-19 Workers’ Comp Claim Presumption Flowchart

15 Jun

Jessica Mulholland  June 9, 2020 6  HR Watchdog – Cal Chamber

Workers Comp

In early May, Governor Gavin Newsom signed an executive order extending workers’ compensation benefits to California employees who contract COVID-19 while working outside of their homes during the state’s stay-at-home order. This workers’ compensation benefits extension is causing some confusion, but a Sacramento-based law firm recently created a flowchart to help employers.

As previously reported, the order prompted many questions about its scope, criteria and implementation — and created a “rebuttable presumption” that workers meeting certain criteria who contract COVID-19 did so during employment (which means the law automatically assumes workers’ compensation covers their claims and shifts the burden to employers, who may then present evidence to rebut the presumption).

The California Department of Industrial Relations answered some questions in its Question and Answer page, but Sacramento-based law firm Mullen & Filippi went a step further, creating a COVID Claim Presumption Flowchart to further simplify how employers can determine whether a presumption applies.

Start at the top of the chart. If you answer yes to the first seven questions — which include whether the worker received a COVID-19 diagnosis or tested positive for the virus, whether the diagnosis was from a medical doctor holding a license from the California Medical Board and whether the diagnosis was confirmed with a positive virus or antibody test within 30 days, to name a few — COVID-19 is presumed as an industrial injury. This means that, unless you can rebut the presumption by providing evidence of an alternate cause, you must provide workers’ compensation benefits. If, however, you answer no to any of the questions, no presumption exists, and the normal evidentiary rules apply.

Assuming the claim is compensable, employers can use page two of the flow chart to help determine apportionment, compensable consequences, death benefits and temporary total disability benefits.

This executive order is retroactive to March 19, 2020, and extends through July 5, 2020.

Jessica Mulholland, Managing Editor, CalChamber

For more COVID-19-related federal, state and local resources, visit the CalChamber Coronavirus (COVID-19) webpage and access additional COVID-19-related HRWatchdog blogs.

Can an employee refuse to return to work?

HR CAlif. 6/11/2020

Yes. Although you can’t force a furloughed employee to return to work, their refusal to return may disqualify them from receiving unemployment benefits.

The California Employment Development Department (EDD) has released general guidance on COVID-19-related unemployment benefits.

For example, if a business has abided by local and state guidelines and is providing adequate employee protections, an employee who refuses to return to work out of a general fear of contracting COVID-19 wouldn’t qualify to receive unemployment benefits.

If, however, the business doesn’t have proper protective measures in place, an employee can use the lack of protective measures as a valid reason for not returning to work and will thus be able to claim unemployment benefits.

An employee who earns more money on unemployment cannot use the higher pay as a valid reason for refusing to return to work; their refusal would disqualify them from receiving unemployment benefits.

If an employee doesn’t have suitable childcare and cannot return work, it would likely be good cause for not returning to work and the employee would likely be able to keep their unemployment benefits.

Read more about Unemployment Insurance in the HR Library and HRCalifornia Extra’s Unemployment Insurance: A Guide for Employers with Newly Displaced Workers.

Q&As

OSHA Issues FAQ on Face Coverings

The new guidance outlines the differences between cloth face coverings, surgical masks and respirators.

JUN 10, 2020

WASHINGTON, DC – The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has published a series of frequently asked questions and answers regarding the use of masks in the workplace.

“As our economy reopens for business, millions of Americans will be wearing masks in their workplace for the first time,” said Principal Deputy Assistant Secretary for Occupational Safety and Health Loren Sweatt. “OSHA is ready to help workers and employers understand how to properly use masks so they can stay safe and healthy in the workplace.”

The new guidance outlines the differences between cloth face coverings, surgical masks and respirators. It further reminds employers not to use surgical masks or cloth face coverings when respirators are needed. In addition, the guidance notes the need for social distancing measures, even when workers are wearing cloth face coverings, and recommends following the Centers for Disease Control and Prevention’s guidance on washing face coverings.

These frequently asked questions and answers mark the latest guidance from OSHA addressing protective measures for workplaces during the coronavirus pandemic. Previously, OSHA published numerous guidance documents for workers and employers, available at https://www.osha.gov/SLTC/covid-19/, including five guidance documents aimed at expanding the availability of respirators.

For further information and resources about the coronavirus disease, please visit OSHA’s coronavirus webpage.

 

Employers Learn How To Help Employees Who Test Positive to COVID-19

10 Jun

June 2020

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Local Minimum Wage Increases Coming July 1

8 Jun

Bianca Saad  June 2, 2020 HR Watchdog – Cal Chamber

Minimum Wage

July is just around the corner, and with it comes several local minimum wage increases throughout California. Here’s a list of localities that will have minimum wage increases effective July 1, 2020:

  • Alameda: $15/hour.
  • Berkeley: $16.07/hour.
  • Emeryville: $16.84/hour;
  • Fremont: $15/hour for employers with 26 or more employees; $13.50/hour for employers with 25 or fewer employees.
  • Los Angeles City: $15/hour for employers with 26 or more employees; $14.25 for employers with 25 or fewer employees.
  • Los Angeles County (unincorporated areas): $15/hour for employers with 26 or more employees; $14.25 for employers with 25 or fewer employees.
  • Malibu: $15/hour for employers with 26 or more employees; $14.25 for employers with 25 or fewer employees.
  • Milpitas: $15.40/hour.
  • Novato: $15/hour for employers with 100 or more employees; $14/hour for employers with 26-99 employees; $13/hour for employers with 25 or fewer employees.
  • Pasadena: $15/hour for employers with 26 or more employees; $14.25 for employers with 25 or fewer employees.
  • San Francisco: $16.07/hour.
  • San Leandro: $15/hour.
  • Santa Monica: $15/hour for employers with 26 or more employees; $14.25 for employers with 25 or fewer employees.
  • (NEW) Santa Rosa: $15/hour for employers with 26 or more employees; $14/hour for employers with fewer than 25 employees.

Note: Eligibility rules may vary based on different locations

Santa Rosa’s City Council recently considered whether to delay the implementation of the city’s minimum wage ordinance due to businesses’ struggles amid the COVID-19 pandemic but, ultimately, decided to proceed as planned. Santa Rosa’s minimum wage rates will increase again on January 1, 2021, and will be $15/hour plus annual adjustments based on the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) for both large and small businesses.

Minimum Wage Delays

Due to the economic burdens imposed on businesses due to COVID-19, two city councils did decide to delay implementation of their recently adopted minimum wage ordinances: Hayward and San Carlos. Initially slated to take effect on July 1, 2020, both localities’ minimum wage rates will increase beginning January 1, 2021.

San Francisco Paid Parental Leave Ordinance Expansion

San Francisco’s Paid Parental Leave Ordinance, which requires employers to provide supplemental compensation to employees collecting California Paid Family Leave wage replacement benefits, will increase paid supplementation from six weeks to eight weeks on July 1, 2020. This aligns the ordinance with the state’s expansion of Paid Family Leave benefits for all claim effective dates beginning on or after July 1, 2020. A new poster is anticipated.

Many of these local ordinances contain notice requirements, but, thankfully, the CalChamber store sells required posters that are compliant with various California city and county local ordinances. Check to see if your city or county has any required posters.

Employers should review their hourly wage rates for their employees working in any local jurisdictions listed above and make any necessary adjustments by July 1 to comply. Don’t forget to pay attention to where your remote employees are located, as they could be subject to local minimum wage and other ordinances they may not typically be when reporting to the worksite.

Bianca Saad, Employment Law Subject Matter Expert, CalChamber

Most Counties in California Now Permitted to Move to Accelerated Stage 2 Reopening

By Ellen E. Cohen & Sarah H. Scheinhorn on June 4, 2020 Jackson Lewis PC

covid_reopening_roadmap

At the beginning of May, California implemented a staged reopening for businesses closed due to the shelter in place orders resulting from the COVID-19 pandemic. This plan, referred to as the “Resilience Roadmap” allowed for counties to apply for a variance if certain criteria set by the state public health officer are met. The variances allow counties to proceed with reopening certain businesses not permitted under the overall state plan.

To date, a majority of counties have been granted variances that permit dine-in restaurants, hair salons, and barbershops to reopen pursuant to specific guidance, in particular, pertaining to conducting work at these businesses.

As businesses prepare to reopen, they should remember that the state mandates all facilities that reopen 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 them
  3. Implement individual control measures and screenings
  4. Implement disinfecting protocols
  5. Implement physical distancing guidelines

In addition to the State requirements, the individual counties have their own health orders which at times include additional requirements along with state mandates. Many counties require businesses to post social distancing protocols at the worksite. For example, the County of Los Angeles has developed several protocols for businesses such as retail stores, hair salons, and restaurants.

Along with social distancing and similar protocols, many counties are including other requirements as businesses bring employees back to work. San Diego County, one of the first more populace counties to be granted a variance, mandates temperature checks for employees in certain industries. Sonoma County has deployed a cell phone application that employers are required to use (unless they can provide the county with the same information by an alternative means) which verifies that employees are symptom and fever-free.

As employers move toward bringing more employees back to work, they should review state and county orders to ensure they are complying with location-specific requirements. Employers will also need to continue to monitor changes as some counties have suggested that reopening may be rolled back as necessary due to COVID-19 spikes.

Congress Approves Paycheck Protection Program Flexibility Act

By Amberly Morgan on  June 4, 2020 Littler law firm.

PPP Loan Faq

Update: The Paycheck Protection Program Flexibility Act was signed into law on June 5, 2020 following the U.S. Senate passage by voice vote the Paycheck Protection Program (PPP) Flexibility Act of 2020 (H.R. 7010). The House of Representatives had approved this bill with near unanimity on May 28. Generally, the PPP provides low-interest, forgivable loans to small businesses affected by the COVID-19 pandemic. The new bill responds to complaints that the strict requirements on how employers spend the PPP funds disqualify them from obtaining the promised loan forgiveness, given the ongoing inability for many businesses to reopen. The bill is expected to be signed into law.

What changes would the bill make to the PPP?

The bill relaxes a number of the program’s requirements. Specifically, the bill:

  • Reduces the percentage of the loan that must be used on payroll expenses. The first Interim Final Rule interpreting the PPP required borrowers to spend at least 75% of loan proceeds on payroll costs. No more than 25% of non-payroll costs would be eligible for loan forgiveness. H.R. 7010 allows borrowers to spend up to 40% on allowable non-payroll costs, such as covered rents, utilities and mortgage interest. This change is especially welcome to borrowers that have been unable to reopen but are still obligated to pay rent, mortgages and utilities.
  • Provides more time for borrowers to spend loan funds and meet forgiveness requirements. The PPP requires borrowers to spend loan proceeds during an eight-week Covered Period. Additionally, subject to certain Safe Harbor provisions, the PPP required borrowers to maintain headcount and wages within the Covered Period relative to specified reference periods in order to obtain full loan forgiveness. Now borrowers have the option to extend the Covered Period until the earlier of 24 weeks after loan origination or the end of the year. This flexibility better meets the needs of borrowers that have been unable to reopen but need the PPP funds in order to do so.
  • Increases the time to repay unforgiven loan amounts. The PPP statutory text provides that any loan balance not forgiven would have a maximum maturity of 10 years. The SBA determined that loans would mature in two years. The bill amends the PPP to provide for a minimum maturity of five years, but also allows lenders and borrowers to mutually agree to modify the maturity terms.
  • Lengthens the term of payment deferral. The PPP provides that borrowers are not required to make loan payments (including principle, interest and fees) for at least six months and up to one year.  Under H.R. 7010, such payments can be deferred until the amount of forgiveness is remitted to the lender by the SBA or until at least 10 months after the last day of the borrower’s Covered Period if the borrower has not yet applied for loan forgiveness. This removes the requirement that borrowers make payments on loan balances while awaiting a decision on loan forgiveness.
  • Extends the Safe Harbor for restoration of headcount and wages. The PPP provides a Safe Harbor that allows borrowers an extended time to restore full-time equivalent (FTE) employees and salary or wages that were reduced between February 15, 2020 and April 26, 2020, while still obtaining loan forgiveness. The bill extends this Safe Harbor from June 30, 2020 until December 31, 2020. This addresses difficulties employers are having related to rehiring workers, finding replacement workers, and continued delays in reopening.
  • Expands protections for borrowers unable to rehire staff or unable to return to pre-COVID business levels due to social distancing measures. Borrowers unable to restore headcount will potentially be able to obtain full loan forgiveness.  Under the terms of the bill, if the borrower can document, in good faith, the inability to re-hire individuals who were the borrower’s employees as of February 15, 2020 and an inability to hire similarly qualified individuals for unfilled positions on or before December 31, 2020, then reductions to FTEs will not impact loan forgiveness. Similarly, reductions to FTEs will not impact loan forgiveness if the borrower is able to document an inability to return to the same level of business activity as prior to February 15, 2020 due to compliance with worker or customer safety requirements related to COVID-19.
  • Permits borrowers to defer payroll taxes. PPP recipients who received any amount of loan forgiveness were previously not able to defer payment of payroll taxes as provided in section 2303 of the CARES Act. The new amendments would remove that restriction.

Next Steps

The bill is now official and its amendments take effect as if they were included in the original CARES Act, the law that created the PPP.  Employers should evaluate their use of PPP funds in light of these new changes and consult with knowledgeable counsel to evaluate the available options for using loan funds and maximizing loan forgiveness.

Employers Must Post Certain Notices Upon Re-opening in Orange, San Diego, and Los Angeles Counties

1 Jun

May 30, 2020 from Payne & Fears PC

Reopen

As counties move to re-open businesses, many counties have issued requirements for businesses to post notices regarding their compliance with safe re-opening protocols.

Orange County

On May 29, 2020, and effective the same day, the County Health Officer of the Orange County Health Care Agency issued an amended order and strong recommendations to help slow the spread of COVID-19. Included in this amended order was a mandate that all businesses, industries, and entities listed on the state’s websites on industry guidance and county roadmaps that reopen in Orange County as part of Stage 2 of the State’s Resilience Roadmap post certain notices. All re-opening businesses, industries, and entities must post the following in a location visible to the public at the public entrances of each property:

  1. Industry-specific checklist. The State of California has prepared checklists for a variety of industries and businesses to help these employers implement their plan to prevent the spread of COVID-19. These checklists can be found here. Scroll down to find your industry/business type and press the “+” on the right side. The checklists will be linked below.
  2. An attestation by the owner and/or operator that the business has:
  • Performed a detailed risk assessment and implemented a site-specific protection plan;
  • Trained employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them;
  • Implemented individual control measures and screenings;
  • Implemented disinfecting protocols; and
  • Implemented physical distancing guidelines.

San Diego County

San Diego County has a similar mandate effective as of May 27, 2020: All reopened businesses, other than restaurants providing dine-in services, must prepare and post a “Safe Reopening Plan” on this form for each of their facilities in the county. Restaurants providing dine-in services must prepare and post a “COVID-19 Restaurant Operating Protocol” on this form for each restaurant in the county. These documents must be posted at or near the entrance of the relevant facility and shall be easily viewable by the public and employees. Note that a copy of the Safe Reopening Plan or COVID-19 Restaurant Operating Protocol must also be provided to each employee performing work at the facility.

Los Angeles County

Los Angeles County has had similar notice requirements in place. Relevant businesses must post the relevant protocol notice at or near the entrance to the facility so that it is easily viewable by the public and employees. The required protocol that a business must post depends on the type of business. The order describes what protocol businesses need to post. The relevant information of the order starts on page 8. LA also has a website with available signs for businesses to post.

Other counties have similar requirements.

Small Business Administration Issues Additional Guidance on Forgiveness of Paycheck Protection Program Loans

PPP-loan-forgiveness-guidelines-payroll-457x305

By Melissa Ostrower and Robert R. Perry May 26, 2020, Jackson Lewis PC

The Small Business Administration (SBA) has issued guidance on the forgiveness provisions applicable to loans made under the Paycheck Protection Program (PPP) created by the CARES Act.

The SBA was required to issue guidance on these provisions within 30 days of the enactment of the CARES Act, or no later than April 26, 2020. On May 15, 2020, the SBA issued guidance in the form of the PPP Loan Forgiveness Application and Instructions. On May 22, 2020, the SBA issued additional guidance in the form of an Interim Final Rule.

(For details on PPP, see our article, Paycheck Protection Program Loans: Basics for Small Businesses, Sole Proprietorships.)

The Forgiveness Application answers many questions, including:

  1. Is there flexibility in determining Covered Period?

Under previously issued guidance, the SBA made clear that the Covered Period is the eight-week (56-day) period following the date the PPP loan proceeds are disbursed. For example, if the employer received its PPP loan proceeds on Monday, April 20, the first day of the Covered Period is April 20 and the last day of the Covered Period is Sunday, June 14.

In the Forgiveness Application, the SBA has introduced an Alternative Payroll Covered Period concept. Under this alternative, employers with a biweekly (or more frequent) payroll schedule may elect to calculate eligible payroll costs using the eight-week (56-day) period that begins on the first day of their first pay period following their PPP Loan Disbursement Date (Alternative Payroll Covered Period). For example, if the employer received its PPP loan proceeds on Monday, April 20, and the first day of its first pay period following its PPP loan disbursement is Sunday, April 26, the first day of the Alternative Payroll Covered Period is April 26 and the last day of the Alternative Payroll Covered Period is Saturday, June 20.

  1. What are “costs incurred and payments made” during the Covered Period?

The Forgiveness Application provides: “Borrowers are generally eligible for forgiveness for the payroll costs paid and payroll costs incurred during the eight-week (56-day) Covered Period (or Alternative Payroll Covered Period).” (Emphasis added.) Costs that are incurred but not paid during the applicable period are eligible for forgiveness if they are paid on or before the next regular payroll date (for payroll costs) or before the next regular billing date (for nonpayroll costs.)

Additionally, the Forgiveness Application provides that eligible nonpayroll costs eligible for forgiveness include expenses paid during the Covered Period or incurred during the Covered Period and paid on or before the next regular billing date, even if the billing date is after the Covered Period. This provision appears to permit the payment of past due eligible nonpayroll costs during the applicable period (subject to the 25% limitation on nonpayroll costs).

  1. What does “full-time equivalent employee” mean?

The Forgiveness Application is the first guidance to shed light on the meaning of “full-time equivalent.” This critical term was not defined in the CARES Act or addressed in any other guidance issued.

To calculate the average full-time equivalency (FTE) during the Covered Period or the Alternative Payroll Covered Period, determine the average number of hours paid for each employee per week, divide by 40, and round the result to the nearest one-tenth (but in no event greater than 1.0). Employers with a workforce that has a lower headcount but greater hours and earnings (such as a nursing home) get no extra credit (and could actually be penalized, depending on applicable facts and circumstances) under this formula. A simplified method that assigns a 1.0 for employees who work 40 hours or more per week and 0.5 for employees who work fewer hours may be used at the election of the employer.

The reference to “employee” and “paid” in this definition suggests that furloughed employees or other employees receiving pay while not rendering services should be included in the FTE calculation. However, as terminated employees are generally no longer considered to be “employees,” it is unlikely that former employees who are receiving pay can be included.

  1. If an employer decides to pay furloughed employees or to give employees bonuses or raises during the Covered Period or Alternative Payroll Covered Period, do these count as payroll costs?

When calculating cash payroll costs under the Forgiveness Application, the borrower is directed to include the sum of gross salary, gross wages, gross tips, gross commissions, paid leave (vacation, family, medical or sick leave, not including leave covered by the Families First Coronavirus Response Act), and allowances for dismissal or separation paid or incurred during the Covered Period or the Alternative Payroll Covered Period (subject to the $100,000 annual salary cap, as prorated for the Covered Period).

The Interim Final Rule clarifies that:

  • If a borrower pays furloughed employees their salary, wages, or commissions during the Covered Period, those payments are eligible for forgiveness, as long as they do not exceed an annual salary of $100,000, as prorated for the Covered Period; and
  • If an employee’s total compensation does not exceed $100,000 on an annualized basis, the employee’s hazard pay and bonuses are eligible for loan forgiveness, because they constitute a supplement to salary or wages, and are thus a similar form of compensation.
  1. Are some FTE reductions excluded?

Yes. The Forgiveness Application recognizes it is appropriate to exclude certain employees from the FTE calculation. The following FTE reductions do not reduce an employer’s loan forgiveness:

  • Any positions for which the employer made a good-faith, written offer to rehire an employee during the Covered Period or the Alternative Payroll Covered Period that was rejected by the employee (previously announced in FAQ 40); and
  • Any employees who during the Covered Period or the Alternative Payroll Covered Period (a) were fired for cause, (b) voluntarily resigned, or (c) voluntarily requested and received a reduction of their hours.

The Interim Final Rule adds the following requirement to the rehire provision: The employer must have informed the applicable state unemployment insurance office of each employee’s rejected offer of reemployment within 30 days of the employee’s rejection of the offer. Further information regarding how borrowers will report information concerning rejected rehire offers to state unemployment insurance offices will be provided on SBA’s website.

To utilize these exceptions, employers must maintain documentation regarding any employee job offers and refusals, firings for cause, voluntary resignations, and written requests by any employee for reductions in work schedule.

  1. How do salary and wage reductions affect the forgiveness calculation?

The Forgiveness Application provides detailed guidance on how to calculate the loan forgiveness amount where the salary or hourly wages of certain employees have been reduced during the Covered Period or the Alternative Payroll Covered Period (as compared to the January 1, 2020, to March 31, 2020, period). If the employer timely restored or restores salary/hourly wage levels, the employer may be eligible for elimination of the Salary/Hourly Wage Reduction amount.

The Interim Final Rules clarifies that to ensure borrowers are not doubly penalized, the salary/wage reduction applies only to the portion of the decline in employee salary and wages that is not attributable to the FTE reduction. Thus, if a terminated employee is excluded from the numerator of the FTE reduction fraction, the reduction in the employee’s salary or wages is not also deducted from the forgiveness amount.

  1. What about amounts paid to general partners and members of an LLC?

The Forgiveness Application also clarifies whether and to what extent amounts paid to partners and LLC members count as potentially forgiven payroll costs. Line 9 of Schedule A includes in the calculation of payroll costs the “[t]otal amount paid to owner-employees/self-employed individual/general partners.” The instructions to Schedule A provide that Line 9 includes “any amounts paid to owners (owner-employees, a self-employed individual, or general partners) … capped at $15,385 (the eight-week equivalent of $100,000 per year) for each individual or the eight-week equivalent of their applicable compensation in 2019, whichever is lower.”

Cal/OSHA Expands Employer Injury and Illness Prevention Program Requirements

May 27 2020 – COVID-19 (Coronavirus), Workplace Safety – Matthew J. Roberts, Esq.

CalOsha

Cal/OSHA has provided guidance on COVID-19-related employee training including cough and sneeze etiquette.

The California Department of Occupational Safety and Health, commonly known as Cal/OSHA, continues to modify rules and guidance for businesses operating during the COVID-19 pandemic. General industry and several industry-specific rules and guidelines have been modified. Recently, Cal/OSHA modified its rules and guidance on all employers’ obligation to establish and implement an Injury and Illness Prevention Program (IIPP).

Under California law, employers must establish, implement and maintain an IIPP to protect employees from hazardous workplace conditions. The IIPP must be in writing, accessible to employees and contain several provisions including:

  • Procedures for creating safe and healthful work practices;
  • Procedures for identifying, evaluating and investigating workplace hazards, injuries and illnesses;
  • Systems for communicating hazards to employees; and
  • Employee training whenever the employer learns of a new or unrecognized hazard.

When COVID-19 infections started appearing, employers were required to determine if COVID-19 infection was a workplace hazard. Now that COVID-19 is a pandemic with widespread community exposure, employers must update their IIPPs with measures to control infection in the workplace.

Cal/OSHA instructs employers to follow applicable and relevant recommendations from the Centers for Disease Control and Prevention (CDC). Cal/OSHA references two CDC publications for employers to use when establishing infection prevention measures: Interim Guidance for Business and Employers to Plan and Respond to Coronavirus Disease 2019 and Coronavirus Disease 2019 (COVID-19): How to Protect Yourself & Others.

In addition, Cal/OSHA has provided guidance on COVID-19-related employee training which includes the following components:

  • Training provided in a language readily understood by all employees.
  • General description of COVID-19, symptoms, when to seek medical attention, how to prevent its spread and the employer’s procedures for preventing its spread at the workplace.
  • How an infected person can spread COVID-19 to others even if they are not sick.
  • How to prevent the spread of COVID-19 by using cloth face covers, including:
    • CDC guidelines that everyone should use cloth face covers when around other persons.
    • How cloth face covers can help protect persons around the user when combined with physical distancing and frequent hand-washing.
    • Information that cloth face covers are not protective equipment and don’t protect the person wearing a cloth face cover from COVID-19.
    • Instructions on washing and sanitizing hands before and after using face coverings, which should be washed after each shift.
  • Cough and sneeze etiquette.
  • Washing hands with soap and water for at least 20 seconds, after interacting with other persons and after contacting shared surfaces or objects.
  • Avoiding touching eyes, nose and mouth with unwashed hands.
  • Avoiding sharing personal items with coworkers (i.e., dishes, cups, utensils, towels).
  • Providing tissues, no-touch disposal trash cans and hand sanitizer for use by employees.
  • Safely using cleaners and disinfectants, which includes:
    • The hazards of the cleaners and disinfectants used at the worksite.
    • Wearing personal protective equipment (PPE) (such as gloves).
    • Ensuring cleaners and disinfectants are used in a manner that does not endanger employees.

Employers may access the full general industry guidance on the Cal/OSHA website. Several additional guidelines for specific industries, such as agriculture, childcare and construction, can be viewed here. Employers who need to update their written IIPP should consult with legal counsel to ensure that it meets with the requirements under California law.

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

Managing The Emotional Impact of the Pandemic

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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.