State and Local Workplace Safety Orders

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On March 12, 2020, the World Health Organization (WHO) declared COVID-19 a global pandemic. Shortly after, all 58 counties in California issued public health orders applicable to residents and businesses.

The message from the federal, state and municipal governments was for everyone to STAY HOME, except for people who work for businesses deemed to “essential." Nonessential businesses may remain operational as long as their employees can telework.

Initial California Stay-at-Home Order –– Executive Order N-33-20

On March 19, 2020, Gov. Gavin Newsom issued Executive Order N-33-20 (PDF) directing all California residents to stay home unless they are required to maintain the continuity of operations of critical infrastructure and other sectors as the state public health officer may designate as critical to protect the health and well-being of all Californians. The order identified 16 critical infrastructure sectors whose operations the state declared to be essential for the security, public health or safety or economic security of California. Essential workers –– those permitted to work on-site –– include:

• health-care providers, hospital personnel and workers in medical facilities and supporting businesses, including workers at senior living establishments
• law enforcement and first responders, including paramedics and EMTs
• workers supporting groceries and pharmacies, including farm workers and other suppliers and restaurant workers (takeout and delivery only)
• food manufacturing employees and their supplier employees
• workers supporting all public works, including construction projects
• workers supporting electricity, oil and natural gas delivery and maintenance, including gas station workers
• workers supporting the delivery of drinking water and the maintenance of wastewater systems and facilities
• workers in communications and information technology and their suppliers, including postal workers, shippers and newspaper, television, radio and other media services workers
• workers in the hazardous materials field
• workers in the chemical sector, including chemical manufacturing plant personnel, laboratory and distribution facility workers and others
• workers in financial services, including those providing access to banks and lending services
• workers in the defense industrial base, including those who design, manufacture and maintain military weapons systems
• workers supporting critical manufacturing and suppliers, including metals, machinery, components, electrical equipment, appliance and component transportation manufacturing workers
• workers in transportation and logistics, including mass transit workers, airlines, taxis and truck drivers, and those who support them
• workers who provide goods or services to people working from home and supporting services, including laundromats, dry cleaners and laundry service providers
• workers for community-based government operations and essential functions, including some city and county workers

The list of “critical infrastructure sectors” (that is, essential businesses) is for guidance only –– it's not binding on cities and counties that define “essential businesses” differently. According to the federal government, the critical infrastructure sectors are intended “to clarify the potential scope of critical infrastructure to help inform decisions by state and local jurisdictions, but does not compel any prescriptive action. Ultimately, those jurisdictions will need to issue guidance that balances the importance of public health concerns with infrastructure resilience imperatives.” So different jurisdictions might reach different conclusions about where essential worker accommodation is warranted.

The executive order stands until further notice.

Initial Essential Business City and County and Safety Orders

Many California cities and counties have issued health and safety orders for residents and businesses operating within their jurisdiction. Businesses are urged to consult such orders to determine if they qualify as "essential."

Suppliers of essential businesses also are considered “essential,” but only if they support essential businesses. So they might be essential only for a single product line, single process or manufacturing unit or a single service. That means that they may remain open only as necessary to supply and support that essential operation. If a business may remain open partially, it must furlough or lay off workers not deemed essential, and maintain employment for workers who are.

Practice Tip: If your business is asked to remain open so that it can supply an essential business, and you are concerned that you might not meet the definition, ask the essential business for a letter stating that it qualifies, and considers your business to be its essential supplier.

Practice Tip: To enable your commuting employees to prove their essential status if questioned, provide them with a letter confirming that your business is essential, and that employees commute to or from work.

Examples of major city and county health and safety orders include the six counties in the San Francisco Bay Area. They have ordered all essential businesses to prepare and post a “social distancing protocol” in each of their facilities. The employer must provide a copy of the protocol to each employee working in the facility. The employer also must provide evidence that it has implemented a social distancing protocol if asked by any authority enforcing the health and safety order. The protocol must explain how the business:

• limits the number of people who may enter the facility at any one time to ensure that the minimum 6-foot social distance is maintained, except as required to complete the essential business activity;
• marks the 6-foot distance to establish and maintain adequate social distancing among individuals forming lines;
• provides hand sanitizer, soap and water or disinfectant at or near the entrance of the facility and in other appropriate areas for use by the public and employees, and where employees interact with the public (for example, cashier stations);
• provides for contact-free payment systems if feasible, and if not, disinfects all payment portals, pens and styluses after each use;
• regularly disinfects other high-tech surfaces;
• informs employees and customers with a sign posted at the entrance of the facility that they should avoid entering if they have a cough or fever, maintain at least 6 feet of distance from one another, sneeze and cough into their elbows and not shake hands or engage in unnecessary physical contact;

To see if additional social distancing measures have been implemented by the Centers for Disease Control and Prevention, link here: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.

The city of Los Angeles issued a worker protection order. It requires all businesses with essential workers to permit them to wash their hands at least every 30 minutes. The employers must provide, at their expense, nonmedical-grade face coverings for their employees, and must ensure that employees have access to clean, sanitary restrooms stocked with cleansing products or sanitizing agents compliant with hand sanitation protocols recommended by the Los Angeles County Department of Public Health. In addition, Los Angeles requires all customers of and visitors to essential businesses and organizations to wear face coverings over their noses and mouths. The order permits a business owner to refuse entrance to anyone whose face is not covered per the order.

The health and safety orders change as the pandemic worsens or improves, so check regularly to ensure that you're following your county’s most recent order. Links to county orders and amended orders are found in Appendix A.

California Business Closures and State Monitoring List

In mid-July, Gov. Newsom ordered a pause in reopening, mandating the immediate closure of some businesses statewide, and additional closures for at-risk counties. It's an effort to slow the spread of the coronavirus. It's also intended to relieve pressure on the hospital system and reinforce health and safety guidance, including social distancing and the statewide mandate to wear face coverings. See how the virus data are tracked and guidance to minimize its effects here.

On July 13, Gov. Newsom announced the immediate closure of several industries because of a surge in coronavirus cases and increased hospitalizations. Effective immediately these businesses must close all indoor operations throughout the state:

• dine-in restaurants
• wineries and tasting rooms
• movie theaters
• family entertainment centers
• zoos and museums
• card rooms
• bars, breweries and pubs (including outdoor venues unless meals are served)

Such businesses, other than bars, breweries and pubs, may operate outdoors as long as service occurs where there is sufficient flow of air. In addition, other safety measures must be practiced, including social distancing and the wearing of face coverings. Specific industry guidelines are found here.

These businesses and activities must close in counties named on the state's county Monitoring List for three or more consecutive days:

• gyms and fitness centers
• places of worship
• offices for noncritical infrastructure workers
• personal care services (including nail salons, massage and tattoo parlors)
• hair salons and barbershops
• malls and shopping centers
• indoor protests

As of July 17, 2020, such closures apply to these counties (click here for the most up-to-date list):

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

No one knows when the closures will end. The order is clear that counties might be added to the list should a spike in new cases and hospitalizations occur in places currently exempt from closure.

California's Employer Playbook –– Guidance and Resources to Maintain Safe Workplaces

Gov. Newsom released a 32-page COVID-19 Employer Playbook providing additional guidance for California employers for the reopening and maintenance of safe California workplaces.

The Playbook is not intended to be exhaustive, it does not include county-specific health orders and it is not a substitute for existing health and safety regulatory requirements. The Playbook does provide guidance for managing and preventing COVID-19 outbreaks, regulations for reporting identified cases, cleaning and disinfecting guidelines, return-to-work guidelines following a confirmed case and California paid sick leave requirements. It includes a list of state regulatory resources for employers, including an industry-specific checklist from state regulatory agencies that monitor and enforce COVID-19 statutes and orders.

The Playbook reinforces previous recommendations and guidance, and updates information as well. The guidance covers the topics discussed in the following subsections.

A Workplace-Specific COVID-19 Prevention Plan Must Be Created

Per the Playbook, the COVID-19 prevention plan for every business must:

• Be workplace-specific.
• Identify work areas and job tasks with potential COVID-19 exposure.
• Include control measures to eliminate or reduce such exposure, such as symptom-screening protocols.
• Maintain healthy business operations, including providing clear direction on how to report and communicate with managers, workers and local health officials when there is a COVID-19 case or outbreak.
• Maintain a healthy work environment, including cleaning and disinfecting, mandating the wearing of masks, implementing social distancing protocols and other health and safety measures.
• Provide effective training for workers, including an outline of policies and procedures for employees and customers to follow. And
• Encourage efforts to create a safe workplace for everyone.

Many employers have drafted and implemented not only a return-to-work plan, but a prevention plan and other health and safety protocols to which their workers and customers must adhere. Employers should review their plans and revise them to include all required items.

What to Do When There Is COVID-19 in the Workplace

The Playbook advises employers what to do when a COVID-19 positive case is reported. It explains how employers should:

• Respond to an employee experiencing symptoms of COVID-19.
• Communicate identified cases of COVID-19 to the local health department.
• Communicate identified cases of COVID-19 to “close contacts.”
• Strive to prevent the further spread of COVID-19.
• Know the criteria for returning to work after isolation. And
• Follow measures for cleaning and disinfecting after a confirmed case in the workplace.

The Playbook provides checklists under each of these elements, and cites to related CDC guidance. Unfortunately, it is less clear about what is required versus what is recommended. Given the unclear guidance, employers should consult CDC and OSHA guidelines, and work with their employment counsel about questions related to implementing the Playbook guidance in case-specific situations.

Regulations and Guidance for Reporting COVID-19 Cases

The Playbook reminds employers that a work-related COVID-19 fatality or illness must be recorded like any other recordable occupational fatality, injury or illness. It also advises employers when they must report a COVID-19 case to Cal/OSHA. Unfortunately, the Playbook provides no additional guidance on how an employer should determine whether an employee who tests positive for COVID-19 contracted the illness at work. We encourage employers to review this book's OSHA Requirements — Recording and Reporting COVID-19 section, and to contact us if you have any questions about requirements relating to recording and reporting a positive COVID-19 case in the workplace.

Paid Sick Leave and Other Benefits Available to Employees

The Playbook reminds employers of the various federal, state and local ordinances and statutes that require paid sick leave, paid leave and other benefits companies must provide employees as a result of COVID-19 exposure or a positive case. The Playbook covers benefits pertinent to:

• the California Family Rights Act CFRA);
• paid sick leave (federal, state and local paid sick leave entitlements);
• state disability insurance and paid family leave;
• regular and pandemic unemployment benefits;
• workers’ compensation.

Employers must understand how these benefits and entitlements work with each other, and they must understand how to apply them properly.

A helpful chart comparing various federal, state and local sick leave requirements is available. And here's a useful chart detailing state benefits potentially available to employees who contract COVID-19.

Guidance for Enforcing Face Mask Requirements

Employers can help their employees deal with individuals who are not wearing face masks or face coverings.

• Employees should avoid confronting other workers or members of the public not wearing a face covering. They should remain at least 6 feet from the individual, and report the incident to a supervisor.
• The supervisor should consult the company's human resources department for additional advice about how to dealing with these situations.
• Employers should train employees on how to handle situations when someone is not wearing a face covering.
• The training should include de-escalation methods for confrontations over the the face-mask requirement.

The Playbook provides sample language for dealing with situations that arise over face masks. Businesses whose employees regularly interact with the public should develop policies and procedures, and train their employees what to do when a customer or fellow employee isn’t wearing a face covering.

Employers must stay up to date on evolving federal, state and local guidance. Employers should create, review and implement a written workplace-specific plan, incorporating applicable, federal, state and local guidance, and train all employees on new policies and procedures, including those on how to report possible exposure, symptoms, confirmed cases and noncompliance with protocols.

Enforcement and Compliance

The California Governor’s Office of Emergency Services established the COVID-19 Enforcement Task Force to monitor and enforce violations of statutes and orders. The state agencies included in the task force are the Department of Alcoholic Beverage Control, the Department of Consumer Affairs, the Department of Industrial Relations, including Cal/OSHA, and the Division of Labor Standards and Enforcement. As the crisis deepens, it’s likely that these agencies will receive complaints from whistleblower employees or members of the public complaining about businesses failing to follow the law. Employers should remain up to date on the law and changes in the guidance for handling these situations. If you have questions, contact employment counsel with any questions.

See Also

• Employment and Labor Introduction
• Appendix — Web Links For Local Safety Orders
• Federal Health and Safety Orders — Centers for Disease Control and Prevention Guidance

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