Tag Archives: Employment Law

The City of San Diego Enacts COVID-19 Related Worker Recall and Retention Ordinances

29 Sep

By Kelly D. Gemelli & Arcelia N. Magaña on September 21, 2020, Jackson Lewis

The City of San Diego enacted emergency ordinances requiring fair employment practices in response to job and economic insecurity due to the COVID-19 pandemic and stay-at-home directives.  The City of San Diego COVID-19 Building Service and Hotel Worker Recall Ordinance (“Recall Ordinance”) and the City of San Diego COVID-19 Worker Retention Ordinance (“Retention Ordinance”) went into effect immediately upon their passage on September 8, 2020. The Ordinances apply to three categories of businesses and employers that the City found have been especially impacted by the COVID-19 pandemic:

  1. Commercial Property Employer: defined by ordinance as an owner-operator, manager, or lessee, including contractor, subcontractor, or sublessee, of a non-residential property located within the geographical boundaries of the City of San Diego that employers 25 or more janitorial, maintenance, or security service employees. Only the janitorial, maintenance, and security service employees who perform work for a Commercial Property business or employer are covered by the Ordinance.
  2. Event Center Employer: defined by ordinance as an owner, operator, or manager or a privately-owned structure of more than 50,000 square feet or 5,000 seats that is used for the purpose of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers. The term “event center” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the “event center’s” purpose, including food preparation facilities, ushering services, ticket taking services, concessions, retail stores, restaurants, bars, and structured parking facilities, but excludes governmental entities.
  3. Hotel Employer: defined by ordinance as an owner, operator, or manager of a residential building located within the geographical boundaries of the City of San Diego with at least 200 guest rooms that provide temporary lodging in the form of overnight accommodations to transient patrons, and may provide additional services, such as conferences and meeting rooms, restaurants, bars, or recreation facilities available to guests or the general public. A “hotel employer” also includes the owner, operator, manager, or lessee of any contracted, leased, or sublet premises connected to or operated in conjunction with the building’s purpose, or providing services to the building.

The Recall Ordinance requires a covered employer to offer positions that become available on or after September 8, 2020, to qualified employees who were laid off on or after March 4, 2020. A laid-off employee is deemed qualified and must be offered a position – in the order of priority below – if the employee:

  1. Held the same or similar position at the same location when the employee was laid off; or
  2. Is or can be qualified for the position with the same training that would be provided to a new worker hired into the position.

If more than one laid-off employee is entitled to preference for a position, the employer must offer the position to the laid-off employee with the greatest length of service in the position and then to the laid-off employee with the greatest length of service with the employer at the employment site.

Under the Retention Ordinance, when a covered business experiences a Change in Control as defined by the Ordinance, covered employees are given preference in hiring by the successor business employer for a period of 6 months and must be retained for no less than 90 days, provided the successor employer continues operating for 90 days unless there is cause for termination (which the Ordinance does not define). Once the 90 days have elapsed, the successor employer must perform a written performance evaluation for each eligible employee retained pursuant to the Retention Ordinance.

The Ordinances will remain in effect for six months. However, they could be repealed by January 1, 2021, depending on whether Gov. Gavin Newsom signs pending Assembly Bill 3216 into law, which would provide similar worker protections statewide.

New Study Finds Dining Out Increases Chances of Catching Coronavirus

21 Sep

The report shows adults infected with the virus were more than twice as likely to report dining out in the 14 days before getting sick.

Author: David Gonzalez (KHOU)  Published: September 12, 2020

HOUSTON — Restaurants in Texas are still operating at a limited capacity under Gov. Greg Abbott’s executive order.

The restrictions are place to stop the spread of COVID-19.

However, a new study by the Centers for Disease Control and Prevention shows eating at restaurants may increase your risk of catching the virus.

For instance, restaurants have adjusted to being in business during the pandemic as best they can.

Take-out and delivery options have grown very popular but many people still enjoy dining out.

“I think people should be extraordinarily thoughtful in how they decide to go out,” Dr. Paul Biddinger, director of Emergency Preparedness Research, Evaluation and Practice program at the Harvard T.H. Chan School of Public Health said.

He added, “Of course you have to take off your mask in order to eat and that changes the protection that we’ve been recommending now for so many months. “

The report shows adults infected with the virus were more than twice as likely to report dining out in the 14 days before getting sick.

“And if they are sharing a table with people that are not part of their household, part of their close environment, they should actually be discussing risk factors, recognizing still that we think that 30-60 percent of people can transmit COVID when they have minimal or no symptoms,” Dr. Biddinger said.

He believes there may be different risks between dining indoors versus on a patio.

Most restaurants are doing what they can to protect people by limiting capacity and spacing out tables.

In a statement, the Texas Restaurant Association said the study contained a number of flaws.

Now, more than ever, it is essential that the public is able to make decisions about activities outside of their home based on complete and accurate information about the spread of coronavirus (COVID-19).

We still do not find evidence of a systemic spread of the coronavirus coming from restaurants who are effectively following our Restaurant Reopening Guidance, encouraging guests to wear masks, social distancing, and practicing good hand hygiene. In effect, the lack of a direct correlation should be evidence that, when restaurants demonstrate effective mitigation efforts, the risk is low when dining outside or inside.

Assembly Bill 685 Changes Employer Notification Requirements on COVID-19 and Enhances Cal OSHA Enforcement Abilities

By Cressinda D. Schlag & Amy P. Frenzen on September 17, 2020 -Jackson Lewis PC

On September 17, 2020, Governor Newsom signed Assembly Bill (“AB”) 685, which requires employers to provide written notifications to employees within one business day of receiving notice of potential exposure to coronavirus (“COVID-19”).  AB 685 also authorizes the Division of Occupational Safety and Health (“Cal OSHA”) to prohibit operations, processes, and prevent entry into workplaces that it has determined present a risk of infection to COVID-19 so severe as to constitute an imminent hazard. AB 685 also authorizes Cal OSHA to issue citations for serious violations related to COVID-19 without requiring the agency to comply with precitation requirements.

Notification Requirements

Current California law requires employers to report certain occupational injuries and illnesses to Cal OSHA within a prescribed period. AB 685 confirms employers must report COVID-19 cases to the agency that satisfy Cal OSHA’s definition of a serious injury or illness. To satisfy this requirement, employers must have a process for employees to report potential exposures to COVID-19, having tested positive for COVID-19, or having symptoms of COVID-19. Employers must also assess any employee COVID-19 case to determine whether reporting on the case is required under Cal OSHA regulations.

Along with notifying Cal OSHA of a COVID-19 case that meets the definition of a serious occupational injury or illness, AB 685 requires employers having notice of a potential COVID-19 exposure (e.g., individual testing positive for COVID-19 was in the workplace) provide a written notice to:

  • employees and subcontractor employees who were at the worksite when a potentially infected individual was there and may have been exposed to COVID-19 as a result; and,
  • employees’ exclusive representative, if applicable.

This notice must be provided within one business day of the employer being notified of a potential exposure and may be done in “a manner that the employer normally uses to communicate employment-related information,” such as personal service, mail, or text message. The notice should be drafted to protect employee privacy and without disclosure of personally identifiable information or personal health information. The notice should also include information on COVID-19 benefits the employee may be entitled to and the disinfection and safety plan the employer has implemented or plans to implement in accordance with guidance from the Centers for Disease Control and Prevention (“CDC”).

An employer may also need to notify its local public health department of COVID-19 cases if the number of cases the employer knows about meets the definition of a COVID-19 outbreak as currently defined by the California State Department of Public Health. Upon an outbreak, the employer must notify its local public health department within 48 hours and be prepared to provide information on the number of COVID-19 cases at the worksite, their names, occupation, and other pertinent information. Employers will then need to keep working with the local health department and provide updates on new laboratory-confirmed COVID-19 cases.

Notifications required under AB 685 do not alter or change the work-relatedness determination for COVID-19 cases under Cal OSHA regulations. AB 685 further requires that employers maintain records of written notifications for at least three years.

Enforcement Procedures

AB 685 authorizes Cal OSHA to act when, “in its opinion,” employees are exposed to COVID-19 in such a manner as to constitute an imminent hazard by:

  • Prohibiting entry or access to a worksite;
  • Prohibiting performance of an operation or process at the worksite; or
  • Requiring posting of an imminent hazard notice at the worksite.

In treating an employer’s worksite as having an imminent hazard to COVID-19, Cal OSHA must limit its restrictions on the employer’s worksite to the immediate area where the hazard was identified. In addition, Cal OSHA’s restrictions must not “materially interrupt the performance of critical governmental functions essential to ensuring public health and safety functions or the delivery of electrical power or water.” These provisions will sunset on January 1, 2023. Cal OSHA regulations require a strict process for “serious violations,” in which Cal OSHA creates a rebuttable presumption of a serious violation following an inspection, which is then shared with the employer and the employer is given a chance to rebut. The employer’s rebuttal may then be used in defense of the violation in an appeal or hearing on the matter. Generally, this procedure is satisfied by Cal OSHA sending a standardized form containing descriptions of the alleged serious violation and soliciting information in rebuttal of the presumption to the employer at least 15 days before issuing the citation. For COVID-19 hazards and violations only, AB 685 streamlines this process by allowing Cal OSHA to issue a citation alleging a serious violation without requiring the agency to solicit information rebutting the presumption of a serious violation.  Accordingly, Cal OSHA would not need to notify an employer 15 days before issuing a serious violation related to COVID-19. This exemption will be repealed on January 1, 2023.

New California Law Significantly Expands Employee Entitlement to Family and Medical Leave

By Susan E. Groff and Jennifer S. Grock

September 17, 2020

California employers with as few as five employees must provide family and medical leave rights to their employees under a new law signed by Governor Gavin Newsom on September 17, 2020. The new law significantly expands the state’s existing family and medical leave entitlements and goes into effect on January 1, 2021.

Senate Bill 1383 (SB 1383) also expands the covered reasons for protected leave and the family members whom employees may take leave to care for under the law.

Expanded Eligibility to Small Employers

Under pre-existing law, employers were not required to provide family care and medical leave under the California Family Rights Act (CFRA) (Cal. Gov. Code section 12945.2), if the employee seeking leave worked at a worksite with fewer than 50 employees within a 75-mile radius. Similarly, employers were not required to provide “baby bonding” leave under the New Parent Leave Act (NPLA) (Cal. Gov. Code section 12945.6), if the employee seeking leave worked at a worksite with fewer than 20 employees within a 75-mile radius.

SB 1383 repeals CFRA and NPLA and expands the obligation to provide leave to small employers not covered before. The new law requires employers with at least five employees to provide an otherwise eligible employee with up to 12 workweeks of unpaid job-protected leave during any 12-month period for certain covered reasons. The employer must maintain and pay for the employee’s coverage under a group health plan for the duration of the leave at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of the leave.

Additional Covered Family Members and Expanded Reasons for Leave

SB 1383 also expands the covered family members and potential reasons for which an eligible employee may take leave. Under SB 1383, eligible employees may take leave to bond with a new child of the employee or to care for themselves or a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner.

Under the prior CFRA statute, leave for purposes of caring for a family member was available only if the family member was the employee’s child, a parent, spouse, or domestic partner.

With the enactment of SB 1383, all eligible employees will be able to care for grandparents, grandchildren, and siblings, unlike under the prior CFRA statute.

SB 1383 contains other significant changes. It requires an employer that employs both parents of a child to grant up to 12 weeks of leave to each employee. Under pre-existing law, the employer only had to grant both employees a combined total of 12 weeks of leave.

The new law also requires employers to provide up to 12 weeks of unpaid job-protected leave during any 12-month period due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States. Lastly, SB 1383 does not permit an employer to refuse reinstatement of “key employees” as was previously allowed by the CFRA under qualifying circumstances. Under SB 1383, employees will still need to meet eligibility requirements, including 12 months of service and 1,250 hours worked for the employer in the previous 12-month period, to qualify for family and medical leave.

Employee Training Really Matters

29 Aug

TRAINING SUCCESS STORY CPR SAVES THE DAY …
While riding home from work, three co-workers were “off the clock and off company property” when one of them began having a problem breathing and became unresponsive. The driver quickly returned to the workplace location and summoned help for the non-responsive team member. 

As it turns out the co-worker (Friend) responding to the frantic call for help had recently participated in the CalWork Safety & HR Safety Training course. After the car arrived, when Friend reached the non-responsive man, he immediately began applying the safety course protocol he had recently acquired.  

First, he checked his co-worker and found no pulse or response. By now the man’s lips had turned blue. Next, the dangerously ill man was removed from the car as another participant instructed someone to call 911. Friend then began administering CPR using rescue breaths that he had learned and practices during his CPR training course. 

After the CPR had been administered for several minutes, the non-responsive team member began shallow breathing and registered a weak pulse. Friend continued monitoring then rolled his co-worker on his side while administering CPR until 911 arrived and assumed treatment responsibility. 

The patient was taken to the hospital and was released a few hours later and monitored over the weekend. Because of the help from Friend and quick response, he returned to work the following week. 

NOTE: CalWork Safety & HR Consultant, Ralph Dorwin, was the company’s CPR class instructor. He comments: “This is my first reported example of someone who graduated from my CPR Training Course successfully used the techniques learned in class. It is most gratifying to know that the CalWork Safety & HR training courses really does make a difference for our clients!” 

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  1. Sexual Harassment Prevention
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  4. Dealing With Challenging Employees
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  7. Progressive Discipline Steps
  8. Team Building for Supervisors
  9. Employee Terminations

Achieve Business Profitability … Reduce Costs … Mitigate Risks Discover the extensive training courses we offer our clients. Contact us today – we are here to help!   Call one of our consultants or ask for Don Dressler: 949-533-3742

High Heat Warnings: How to Keep Outdoor Workers Safe

28 Aug

By Katie Culliton  August 18, 2020 33 Cal Chamber

As California experiences record-breaking temperatures — excessive heat warnings and watches have been issued throughout California, including Sacramento, the San Francisco Bay Area, Los Angeles and more — the California Division of Occupational Safety and Health (commonly known as Cal/OSHA) reminds all employers with outdoor workers to take steps to prevent heat illness.

Heat illness occurs when the body’s temperature control system is incapable of maintaining an acceptable temperature; very high body temperatures can damage the brain and other vital organs, and may eventually lead to death.

Remember, California’s heat illness prevention standard applies not only to all outdoor workers, but also to workers who spend a significant amount of time working outdoors, like security guards and groundkeepers, or in non-air-conditioned vehicles, like transportation and delivery drivers.

To prevent heat illness, all employers with outdoor workers must:

  • Develop and implement an effective written heat illness prevention plan that includes emergency response procedures;
  • Train all employees and supervisors on heat illness prevention, including the signs and symptoms of heat illness so they know when to take steps that can prevent a coworker from getting sick;
  • Provide fresh, pure, suitably cool and free drinking water to workers so that each worker can drink at least one quart per hour, and encourage workers to do so; and
  • Provide shade when workers request it and when temperatures exceed 80 degrees, encouraging workers to take a cool-down rest in the shade for at least five minutes.

Workers should not wait until they feel sick to cool down, and workers experiencing possible overheating should take a preventative cool-down rest in the shade until symptoms are gone. Employers should make sure their workers know their procedures for contacting emergency medical services, which includes directing them to the worksite if needed.

Heat Illness and COVID-19

Although employers must provide cloth face coverings or allow workers to use their own to help prevent the spread of COVID-19, it can be more difficult to breathe and harder for a worker to cool off if they’re wearing a face covering. Additional breaks may be needed to prevent overheating. In Cal/OSHA’s high-heat advisory, it recommends that workers have face coverings at all times, but the face coverings should be removed in outdoor high heat conditions to help prevent overheating as long as physical distancing can be maintained. More resources are available on Cal/OSHA’s Heat Illness Prevention webpage and the 99calor.org informational website.

COVID-19 Workers’ Comp Claims on the Rise in California

Oakland – The number of California workers’ compensation claims for COVID-19 continues to climb, as data from the Division of Workers’ Compensation (DWC) show that as of August 10, there were 9,515 claims reported for the month of July, bringing the total for the year to 31,612 claims, or 10.2% of all California job injury claims reported for accident year (AY) 2020. Those claims include 140 death claims, up from 66 reported as of July 6.

Updated figures for May and June show sharp increases in COVID-19 claims for each of those months, as the number of COVID-19 claims with June injury dates more than doubled from 4,438 claims as of July 6 to 10,528 claims as of August 10, while COVID-19 claims with May injury dates rose from 3,889 cases to 4,606 claims (+18.4%), indicating a time lag in the filing, reporting, and recording of many COVID-19 claims. Using claim development factors the California Workers’ Compensation Institute (CWCI) projects there could ultimately be 29,354 COVID-19 claims with July injury dates and 56,082 COVID-19 claims with January through July injury dates. Health care workers continue to account for the largest share of California’s COVID-19 claims, filing 38.7% of the claims recorded for the first 7 months of this year, followed by public safety/government workers who accounted for 15.8%. Rounding out the top 5 industries based on COVID-19 claim volume were retail trade (7.9%), manufacturing (7.0%), and transportation (4.7%).

The updated data is included in the latest iteration of CWCI’s COVID-19 and Non-COVID-19 Interactive Claim Application, an online data tool that integrates data from CWCI, the Bureau of Labor and Statistics and the DWC to provide detailed information on California workers’ comp claims from comparable periods of 2019 and 2020. The new version features data on 710,224 claims from the first 7 months of AY 2019 and AY 2020, including all 31,612 COVID-19 claims from AY 2020. The application allows users to explore and analyze:

· COVID-19 claim counts by month with the ability to segment and filter results by industry, region, injured worker demographics and injury characteristics;

· The volume of all reported workers’ compensation claims by industry and region; and Denial rates for COVID-19 and non-COVID-19 claims by month.

Keep Employees Safe: 7 Ergonomic Tips for Home

by Michele McGovern August 19, 2020

It’s great to work from the couch … except maybe for the aching back, tired eyes and sore neck. They’re nasty results of ergonomic sins we need to avoid.

And most brought home or picked up unsafe habits – ergonomically speaking – that have or will lead to unnecessary pain, discomfort and even injury.

More than 40% of employees work from home in some capacity since the onset of COVID-19, according to research from Stanford University.

The last thing you want is aching or injured workers who aren’t as effective or engaged.

“If you build the right culture, you can rely on what you already did well,” says Howard Spector, CEO of SimplePractice, an electronic health record and practice management software provider. “Start by taking good care of your employees and you can continue to do that under any circumstances.”

Whether work from home is temporary or long-term, employees need an ergonomically fit space. You’ll want to support healthy and safe work habits and practices at home, no matter how long they’ll be there.

Here are seven strategies to help keep employees working from home safe and healthy.

1. Make office benefits available

If employees already have ergonomically correct tools in their on-site workspace, let them get a hold of those for home.

To make sure everyone would be comfortable at home, SimplePractice gave employees time and space to go in the office and grab their chairs, keyboards and anything else that made their workspace comfortable.

You might set up a schedule so employees can be in the office alone and get items they can easily remove and adapt in their work-from-home space.

Ideally, everyone should try to replicate their workspace at home. If that means two screens, take them both home. If it’s an exercise ball for an office chair, grab it.

2. Set up computer, keyboard, mouse

If employees use a computer and keyboard primarily, it’s vital those are set up safely for comfort. If any piece – the keyboard, mouse and/or monitor – are out of whack, employees will likely end up with their necks or backs out of whack, too!

For the keyboard:

  • Position it at the edge of the desk, ideally using a palm rest for the wrists. Or get an adjustable keyboard tray to install below the desk surface.
  • Keep elbows at the side in about a 90-degree angle and shoulders relaxed while typing.

For the mouse:

  • Position it next to the end of the keyboard on the same level.
  • Add a wrist rest, if possible, so no one has to reach too far.

For the monitor:

  • Position it so the top third is eye level.
  • Stay centered directly in front of the monitor.

If employees use a laptop primarily you might want to invest in a few gadgets to make it more comfortable at a desk. You can get these for about $50 from Amazon and other retailers. Try a:

3. Set up the chair

Experts discourage people from working while sitting on a couch or easy chair … or anything other than a desk chair or one of its ergonomically correct alternatives.

Whether employees get their chairs from the office or they’re new, it’s important to make sure they’re set up well. Five keys:

  • Adjust it to a height where both feet rest firmly and evenly on the floor.
  • When seated, employees want two finger lengths between the back of their knee and edge of the seat.
  • Try to tilt your chair pan slightly forward for a comfortable slope. If the chair doesn’t have tilt capabilities, put a flat pillow across the back half of the chair for a natural tilt.
  • Adjust the seat back for a straight posture that mostly supports the space between the waist and the bottom of the shoulder blades. Or, if the seat doesn’t adjust, try a rolled-up towel to gain lumbar and back support.
  • Remove armrests if you primarily type to maintain good posture, experts suggest.

4. Light it up

Some people might say an upside of working from home is getting away from fluorescent office lighting. But home lighting has its own disadvantages: Too much natural light causes glares that lead to squinting and eye strain. Too little or ill-directed light causes strain, too.

The Occupational Safety and Health Administration suggests employees:

  • Position their desks and monitors so windows are in front of and beside their desk. If there’s only one window, employees want it positioned to their right.
  • Adjust blinds so there’s light in the room, but none directly on the monitor.
  • Use indirect or shielded lighting from lamps where possible to avoid intense lighting in the field of vision.

5. Follow the 20/20/20 Rule

Once the logistics are worked, employees need to beware of greater eye and neck fatigue. It happens because people aren’t distracted as often by colleagues and meetings. Instead, they stare at the computer for hours.

To avoid fatigue, practice the 20/20/20 Rule: For every 20 minutes of staring at the monitor, look away for 20 seconds at something 20 feet away.

6. Switch it up

Eyes aren’t the only thing that get fatigued while working for long periods at a home office computer. The body also needs a change to avoid burnout.

If possible, experts recommend changing actual work spots and positions throughout the day. For instance, employees can do a few hours at the desk. Then they might put their computers on a kitchen counter and stand for a while. Weather permitting, they can take it outside later.

7. Break away

Employees can enhance good ergonomic practices by transferring healthy elements from the office to home.

For instance, Spector of SimplePractice wanted to make sure his employees had access to physical wellness when they had to leave behind the company gym and office exercise classes.

He partnered with a fitness app to provide yoga, fitness and meditation classes to all employees. SimplePractice also hired a mindfulness coach to help employees at their convenience meditate and handle work from home stressors.

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.

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).

California Law Requires Face Masks

22 Jun

Wear Mask

CalWorkSafety clients are currently reporting new instances every day that their employees are testing positive for COVID-19.  It is now critical to enforce face coverings at work, and to encourage those who have been in contact with someone who tests positive, to get tested themselves.  Free testing is now available at many CVS locations in Los Angeles, Orange, San Diego and Inland Empire counties.

California Governor, Gavin Newsom, has ordered Californians to wear face coverings in most indoor settings, including offices and many outdoor venues.

New guidance from the California Department of Public Health (CDPH) outlines when masks or cloth face coverings are required, to assist in limiting the spread of Covid-19 that is now continuing to increase currently in California.

As reported instances of Covid-19 are currently on the rise, the most important step to take is to have the cooperation and compliance of all persons to limit the spread by wearing face coverings.  Unless staying at home or maintaining at least a distance of six feet away from others at ALL times, face coverings are required to protect everyone’s health.

CDPH guidance holds that people in California must wear face coverings when they are in the high-risk situations listed below:

  • Inside, or in line to enter, any indoor public space
  • Obtaining services from the healthcare sector in settings including, but not limited to, a hospital, pharmacy, medical clinic, laboratory, physician or dental office, veterinary clinic, or blood bank
  • Waiting for or riding on public transportation or paratransit or while in a taxi, private car service, or ride-sharing vehicle
  • Engaged in work, whether at the workplace or performing work off-site, when these situations exist:
    • 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 other
    • Working in or walking through common areas, such as hallways, stairways, elevators, and parking facilities
    • In any room or enclosed area where other people (except for members of the person’s own household or residence) are present and when one is unable to physically distance

Additionally, masks are required when operating a public transportation or paratransit vehicle, taxi, or ride-share vehicle when passengers are present, and the CDPH recommends even when driving solo. Masks are also required in outdoor public spaces, if six feet of physical separation is not possible.

Exemptions

Under the guidance, a face covering is not required for the following persons:

  • Persons age two years or under
  • Persons with a medical condition, mental health condition, or disability that prevents wearing a face covering
    • This includes persons with a medical condition for whom wearing a face covering could obstruct breathing or who are unconscious, incapacitated, or otherwise unable to remove a face covering without assistance
  • Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication
  • Persons for whom wearing a face covering would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines
  • Persons who are obtaining a service involving the nose or face for which temporary removal of the face covering is necessary to perform the service
  • Persons who are seated at a restaurant or other establishment that offers food or beverage service, while they are eating or drinking, provided that they are able to maintain a distance of at least six feet away from persons who are not members of the same household or residence
  • Persons who are engaged in outdoor work or recreation such as swimming, walking, hiking, bicycling, or running, when alone or with household members, and when they are able to maintain a distance of at least six feet from others
  • Persons who are incarcerated

Existing guidelines regarding social distancing and frequent hand-washing remain in effect.

To ensure your business operation remains in compliance with these new California requirements, please contact us at (949) 533-3742 and one of our experienced safety and HR experts will be in touch with you right away.

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

JOIN OUR   

JUNE 18th  BROADCAST  

Remember …  

Many people have heard this … but like the flight attendant’s warning … we tend to ignore the information unless our plane begins losing altitude. Your goal and ours is to AVOID THE CRASH!

Pat Haley

PAT HALEY

Her effective communication style and problem-solving abilities enable Pat to partner with diverse businesses where emphasis on employee relations matters and both management and employee training helps resolve problems.

WE LOOK

FORWARD TO

YOU JOINING
US …

Pandemic Support

Please Attend Our Broadcast

When: Thursday, June 18   

Time: 10:00 AM pst  

Speaker: Pat Haley

 PHR, CPCU, 

HR & Employee Conflict Trainer 

Topic: Employers Learn How To

Help Employees Who Test Positive to COVID-19
Everyone is back to work and our business is almost back to normal … Or so we thought. Then 3 Weeks Later … when a manager gets a call on a Monday morning – from a customer service employee:

   “I guess I won’t be in for a while…the voice said.

   “I was tested on Saturday afternoon and just got the report”

   “I tested Positive for Covid-19 …What should I do?”

Learn 8 Steps: What to Expect & What to Do

    1. Communication with the Employee – Specific
    2. HR & Recordkeeping – Sample forms
    3. Communication with Close Contacts
    4. Communication with Managers & Supervisors
    5. Communication with Employees
    6. Reactions to the Announcement
    7. Responses to Employees’ Reactions
    8. When the Employee Returns

To Participate Join Zoom Meeting Now:

Meeting ID: 868 8469 7055

https://us02web.zoom.us/j/86884697055 

One tap mobile: Find your local number: 

https://us02web.zoom.us/u/kfIULvaz9

CalWork Logo for Bottom Line

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.