Return-to-Work Considerations

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As businesses begin to contemplate reopening, recalling remote and furloughed workers or, simply, how the new workplace might be structured, many questions arise. What will be the expected norms for employees, vendors, customers and visitors after the stay-at-home directive eases? What obligations do employers have to their employees?

On April 29, Gov. Gavin Newsom issued California's Roadmap to Modify the Stay-at-Home Order, and reopen the state. To read the full plan see https://www.gov.ca.gov/wp-content/uploads/2020/04/California-Roadmap-to-Modify-the-Stay-at-Home-Order.pdf. Just as many local health and safety orders were set to expire, several counties issued updated and extended orders. Many of them relaxed prior restrictions on what businesses were considered "essential," and hence could reopen. See the next section, Appendix — Web Links For Local Safety Orders, for all updated local orders.

The federal Centers for Disease Control and Prevention (CDC), the Occupational Health and Safety Administration (OSHA) and California’s Division of Occupational Safety and Health (Cal/OSHA) have issued guidelines to help employers understand their legal obligations to protect the health and safety of their returning workforce. In addition, essential businesses have learned many lessons in the last two months that might be helpful to other businesses that had to close, move to a remote model or significantly curtail operations. Find their guidelines here:

• CDC: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html
• OSHA: https://www.osha.gov/Publications/OSHA3990.pdf
• Cal/OSHA: https://www.dir.ca.gov/dosh/coronavirus/General-Industry.html

These agencies have scrambled to help businesses promote workplace safety. Their guidance, however, generally is not binding. Businesses should review and implement their suggestions to the extent possible –– a business that acts in good faith to protect its employees from exposure to the virus, to establish policies and practices to reduce transmission, to investigate and handle possible exposure, is a business better able to defend against claims of an unsafe workplace.

STATE AND LOCAL ORDERS FOR REOPENING BUSINESS

By the end of April, the call to reopen businesses was growing loud. State and local governments have responded with updated orders addressing how industry will reopen, and permit employees to return to the workplace.

By mid May Governor Newsom issued its four part plan to reopen the state and issued its roadmap to modify the stay at home orders and began considering specific counties requests to reopen. The Governor's plans can be found here. https://www.gov.ca.gov/wp-content/uploads/2020/04/Update-on-California-Pandemic-Roadmap.pdf;https://www.gov.ca.gov/wp-content/uploads/2020/04/California-Roadmap-to-Modify-the-Stay-at-Home-Order.pdf

On May 10 San Diego County became the first locality to require essential businesses and those opening under California's guidelines to conduct daily temperature screenings of employees reporting to work as well as to develop and post specific plans for health screenings and to maintain social distancing and sanitation measures. The order requires the posting of the businesses Social Distancing and Sanitation Protocol. The County will provide a template. Finally, each business must prepare and post a Safe Reopening Plan. Forms for such a plan are available on the county's website. Employer's must prevent employee's from entering the facility with a temperature above 100 degrees or if they have a cough, shortness of breath, trouble breathing or at least two of the following symptoms: fever, chills, body aches, sore throat, loss of smell or taste. Symptom screening can be performed if a thermometer isn't available. We expect other counties will follow this example especially since the State of California has endorsed temperature and symptom checking as part of its reopening guidance. The order can be found in Appendix A.

GOV. NEWSOM'S PLAN TO REOPEN THE STATE

California's plan to reopen has four stages addressing safety and preparedness, lower risk workplaces, higher risk workplaces and finally the end of stay at home orders. It also has six components addressing: how to monitor, test and trace contacts; how to protect at-risk individuals from infection; how hospitals can handle surges; the development of treatments; how to determine when to reinstate measures such as stay-at-home orders; and how businesses, schools and child care facilities can support physical distancing.

The governor emphasizes physical distancing as an important component of reopening businesses. The plan contemplates reinstating stay-at-home orders if the tracking data indicate it's necessary. The state also envisions the widespread use of face masks and physical modifications of workplaces to encourage distancing. Employers should consider the use of personal protective equipment if necessary, and how to implement physical distancing into their return-to-work plan, for both their workers and the public, if applicable. They also should prepare for the possibility that stay-at-home orders will be reissued.

On May 4, Gov. Newsom announced that retail and hospitality businesses may reopen with modifications on Friday, May 8. The businesses that may reopen include establishments such as book stores, clothing, toy and sporting goods stores, as well as music shops and florists. It does not include salons, gyms, malls, offices or dine-in service in restaurants. The businesses that may reopen must adhere to restrictions such as physical distancing and curbside delivery.

INDUSTRY SPECIFIC GUIDANCE

On May 12, the State issued industry specific guidance. The guidance does not mean these industries may now reopen. It does allow these industries to prepare for reopening by developing a plan as set forth in the guidelines. Guidance was issued for the following industries:

1. Office workspaces. https://covid19.ca.gov/pdf/guidance-office-workspaces.pdf

2. Retail. https://covid19.ca.gov/pdf/guidance-retail.pdf

3. Dine-In restaurants. https://covid19.ca.gov/pdf/guidance-dine-in-restaurants.pdf

4. Shopping malls, destination shopping centers, strip and outlet malls, and swap meets. https://covid19.ca.gov/pdf/guidance-shopping-centers.pdf

Cities and counties are not required to follow the governor's plan and may enforce their stricter guidelines. The San Francisco Bay Area's six counties with stricter orders in place will not immediately reopen. Los Angeles also will not reopen, although Yuma, Modoc and Sutter counties have reopened. The governor made clear that local communities could have separate timelines. Given the disparity in state and local guidelines, we advise all employers to review and abide by their local orders. Links to all city and county orders are found in the next section, Appendix — Web Links For Local Safety Orders.

WORKSITE SPECIFIC PLANS

All worksite specific plans must include:

1. A written prevention plan following a comprehensive risk assessment; 2. Identify contact information for the local health department; 3. Train and communicate the plan to employees; 4. Regularly evaluate the workplace for compliance 5. Investigate COVID-19 illness and determine if any work related factors could have contributed to the risk of infection; 6. Identify close contacts of the affected person and isolate.

Employers should also update the IIPP to reflect how it intends to protect employees from workplace hazards. The worksite specific plan should be incorporated into the IIPP and be posted and available to employees.

WORKSITE SPECIFIC TRAINING REQUIREMENTS

All worksite specific plans must train employees on:

1. Information on how to prevent COVID-19 and what health conditions may make individuals more susceptible; 2. Self screening at home, including temperature and symptom checks using CDC guidelines; 3. The importance of not coming to work if employees have a frequent cough, fever, difficulty breathing, child, muscle pain, headache, recent loss of smell or taste, or if you live with someone who has been diagnosed; 4. To seek medical attention if symptoms become severe; 5. The importance of frequent hand washing with soap and water per CDC guidelines; 6. The importance of physical distancing both at work and off work time; 7. Proper use of face coverings.

WORKSITE SPECIFIC CONTROL MEASURES AND SCREENING REQUIREMENTS

Each worksite specific plan has unique individual control measures and screening requirements. We encourage you to carefully review the worksite specific plan for your industry and comply with all of its requirements. The following individual control measures and screening requirements apply to all worksites:

1. Provide temperature and/or symptom screenings for all workers at the beginning of the shift. Screen vendors, contractors and visitors entering the establishment. 2. Encourage workers who are sick to stay home; 3. Provide and ensure all workers have appropriate and required protective equipment; 4. Consider whether disposable gloves may be useful to supplement hand washing; 5. Face coverings are strongly recommended when employees are int he vicinity of others; 6. Appropriate signage should be posted to to remind the public they should use face coverings and practice physical distancing.

Unique cleaning and disinfecting protocols are established for each industry. Employers are encouraged to review the requirements for their industry and to incorporate the requirements into their return to work plans.

Guidelines related to physical distancing were established for each industry. Employers are encouraged to review the requirements for their industry and incorporate the requirements into their return to work plans.

The following subsections guide you through the required planning and steps to safely return your employees to work. The guidelines take into consideration California state requirements and guidelines and CDC, OSHA, and CalOSHA guidelines.

LOCAL HEALTH AND SAFETY ORDERS UPDATED

Many California counties have issued updated orders redefining "essential" workers and expanding the number of businesses and industries that may reopen. Some counties have merely extended the stay-at-home orders. Some areas where local orders have been updated include six Bay Area counties and the city of Berkeley that jointly released an updated order extending most social distancing mandates through May. The order also expanded the definition of essential businesses to allow resumption of all types of construction as long as it follows certain safety protocols described in the order. Other outdoor businesses, such as nurseries, landscaping companies and gardeners may resume work because the risk of that labor transmitting the virus is low, and social distancing during work is possible. Some child care facilities may reopen to care for the children of essential workers, but they are limited to 12 children. Real estate transactions are permitted, but visiting open houses in person is restricted. The six counties participating in the order are Santa Clara, Marin, Alameda, San Mateo, San Francisco and Contra Costa.

Los Angeles County has extended its order indefinitely with the Public Health Director estimating the order will be in effect through August. San Diego County recently extended its order indefinitely.

Given the disparity in local orders, we encourage all employers to review the orders in the cities and counties in which they do business. Links to all local orders can be found in the next section, Appendix — Web Links For Local Safety Orders. This guide is updated as necessary.

PRE-RETURN PLANNING

Prior to returning employees to work on-site, employers must define a new normal by creating or revising policies to address: critical workplace injuries; general health and safety; employee relations; and benefits. Employers should consider what physical modifications might be required and what personal protective equipment maybe required and consider ways to insure modifications are made prior to employees return to work and protective equipment is ordered and available.

Some workers who were not eligible for and have not taken advantage of the paid leave benefits under the Families First Coronavirus Response Act might have to avail themselves of the benefits after they return to work. Businesses should plan for absences and disruptions as everyone readjusts.

REVIEW GUIDELINES ON EMPLOYEE HEALTH AND SAFETY

OSHA and Cal/OSHA require employers to provide their employees with a workplace free from “recognized hazards causing or likely to cause death or serious physical harm ....” Cal/OSHA’s standards are more detailed. For example, most businesses in California are aware that they must establish, implement and maintain an effective injury and illness prevention program (IIPP). It requires employers to: identify and correct workplace hazards, and to communicate them to employees; ensure that employees comply with the policy; investigate injuries and illnesses; and provide training when necessary . In the past, businesses have drafted and posted such policies with little need to update or change them. In the post-restricted world, however, businesses are advised to review and update their IIPPs.

OSHA and CalOSHA provide detailed standards applicable to specific industries. For example, health-care and related industries must abide by Cal/OSHA’s aerosol transmissible diseases (ATD) standard. A detailed analysis of specific industry standards is beyond the scope of this guide, so employers should consult the websites for OSHA and Cal/OSHA for guidance related to particular industries:

• OSHA: https://www.osha.gov/
• Cal/OSHA: https://www.dir.ca.gov/dosh/

Adhering to governmental guidelines and recommendations, and developing workplace policies around them, can help employers avoid employee claims of unsafe working conditions. And adherence can encourage workers to return to the workplace knowing that their employer cares about their health and safety.

The state of California has issued industry specific guidance setting forth ways companies can provide a safe, clean environment for workers when reopening. See above Gov. Newsom's Plan to Reopen the State. The guidance is not intended to revoke or repeal any employee rights, and is not exhaustive as it doesn't include county health orders. Moreover, it isn't a substitute for existing safety and health related regulatory guidance as OSHA, Cal/OSHA or the CDC. The guidance should be considered and implemented whenever possible as part of a company's return to work plan taking into consideration CDC, OSHA and Cal/OSHA guidance.

ESTABLISH RETURN-TO-WORK POLICIES AND PROCEDURES

The first step is to evaluate the workplace and establish effective policies and procedures to ensure that they reduce the potential for coronavirus exposure and spread. In addition, consideration must be given to handling employees who are diagnosed with COVID-19. Many essential businesses that remained open during the stay-at-home order grappled with this reality, and their experience informs current best practices. Creating a safe workplace is an essential first step to assure employees that returning to work is safe.

California's industry specific guidance suggests each return to work plan or policy be worksite specific which requires risk assessments and careful review of the worksite paying close attention to high traffic areas, socially distancing employees, whether use of PPE is necessary, how and where to to clean and disinfect and industry specific training for employees.

Given the new reality of work which will include, among other things, remote work, testing, monitoring, social distancing and use of personal protective equipment it is important that all California employers review their employee handbooks to insure they are up to date.

ASSESS RISK AND EXPOSURE

OSHA instructs employers to determine the risk of exposure in their workplaces. Given the relatively easy transmission of the virus, all workplaces should consider COVID-19 to be a foreseeable risk. The level of risk depends on several factors, including:

• the type of industry;
• the need for close contact with individuals known or suspected of having the virus; and
• the frequency and/or duration of contact with such individuals.

Examples of industries that would be considered high risk of exposure include health-care facilities and first response agencies. Medium exposure businesses might include establishments open to the general public, such as grocery stores, retail outlets and schools. Low risk industries might include most office environments and others that have minimal contact with the public. Workers in the lowest risk category include those who telework, and perhaps workers in the home delivery business, where contact exposure has been reduced by changing practices.

DETERMINE PROTECTIVE AND PREVENTIVE MEASURES

After determining the level of risk from high to low, employers should evaluate what measures they can implement to protect employees in their specific work sites and industries. Protective measures could include construction or engineering changes, administrative changes and workplace practices and controls.

Examples of construction and engineering changes:

• erecting barriers between a retail employee and a customer;
• adjusting cubicles or workspaces to provide higher walls and less face-to-face contact with co-workers;
• modifying ventilation and airflow systems to circulate air more efficiently.

Examples of administrative changes:

• strict enforcement of policies, such as staying at home when sick;
• social distancing employees physically and with flexible or staggered work hours and the use of technology to limit face-to-face meetings;
• flexibility with teleworking arrangements;
• revising travel policies; and
• use of personal protective equipment, including masks and face shields.

Examples of workplace changes:

• providing temperature and symptom screenings for all workers, visitors, vendors and others entering the workplace;
• providing sufficient hand-sanitizing stations;
• cleaning frequently touched surfaces (kitchen counters, cafeteria tables and chairs, etc.) often and thoroughly with disinfectant: and
• providing and permitting employees to use personal protective equipment and wash their hands frequently.

Different industries and businesses require different approaches. Tailor all policy and procedure changes to the needs of your organization with guidance from the state of California, CDC, OSHA and Cal/OSHA, and advice from your employment attorney.

ESTABLISH POLICIES AND PRACTICES TO IMPLEMENT PROTECTIVE AND PREVENTIVE MEASURES

After evaluating risk and protective measures, employers should establish policies and practices in writing. In California, such practices should be included in the IIPP and in handbook policies distributed to all employees. OSHA, Cal/OSHA and the CDC recommend, among other measures, practices that apply across industries:

• Promote frequent hand-washing and discourage the shared use of materials and spaces.
• Require the use of face coverings by all employees, vendors and visitors that enter the facility.
• Train employees on cough and sneeze etiquette, hand hygiene and not to touch their faces.
• Stagger breaks and meal periods to minimize employee interaction, particularly in break rooms.
• Provide employees with tissues, hand sanitizers and no-touch trash bins.
• Routinely clean and disinfect shared workspace equipment and furniture.

Employers should train employees about the proper use of personal protective equipment, and instruct them on how to identify COVID-19 symptoms. They should require workers to report if they develop any symptoms. Policies should include not only self-monitoring, but self-quarantining and isolation practices to prevent the spread of the virus should an employee become infected. Industries at higher risk might implement a temperature monitoring program. Many essential businesses have established these practices, and other employers might want to implement them in advance of reopening.

Employers should advise employees about available sick leave, vacation or paid time off should they, or a family member, become ill or quarantined at the advice of a health-care provider.

The CDC includes many examples of specific measures businesses can take to protect their employees and reduce transmission of the virus. Consult the guidelines when drafting your policies and procedures.

ESTABLISH SCREENING PROCEDURES IF NECESSARY

Screening might include taking temperatures as employees arrive for work each day. But the practice must comply with the California Consumer Privacy Act (CCPA). (See the subsection above: FAQs –– Disability and Reasonable Accommodations.) According to the Equal Employment Opportunity Commission, any screening or testing measures employers take should be accurate, reliable and mindful of ”the incidence of false positives or false negatives with a particular test.” The EEOC notes that accurate testing reveals only if the virus is present; a negative test does not indicate if an individual previously might have exposed someone else or the likelihood that he or she will contract the virus later. The state of California, in issuing its industry specific guidance, has recommended temperature and/or symptom screening prior to the start of each employee's shift.

Employers who want to implement COVID-19 testing should:

• Screen all employees entering the work site. Employers may not discriminate.
• Require employees to consent in writing to the screening. The consent should explain how test results will be used and how results will be stored per the CCPA.
• Limit the scope of screening to COVID-19 –– unnecessarily broad tests are illegal and invite claims of HIPAA or ADA violation.
• Retain all testing results as confidential medical records per ADA requirements.
• Know that some employees might have a medical condition requiring accommodation for an alternative testing method (for example, instead of a nasal swab).
• Have a plan for handling an employee's refusal to submit to a test. It might include barring access to the work site.
• Know that wage-and-hour laws require pay to nonexempt employees for testing time, including awaiting the results if the employee is not admitted before the results are known.
• Require use of face coverings for all employees, vendors and visitors entering the facility.
• Determine when and under what conditions an employee who tests positive for COVID-19 will be able to return to the workplace. Is a subsequent negative test sufficient? Two subsequent negative tests?
• Know how to address potential workplace exposure if someone tests positive, especially if the worker was on-site in the days before the test.

Note: The California Department of Fair Employment and Housing has not issued guidelines for the use of COVID-19 diagnostic tests, although it has approved the nondiscriminatory practice of temperature-taking. California employers are strongly advised to consult their employment attorneys before implementing a testing program.

COMMUNICATE THE PLAN TO EMPLOYEES AND ANTICIPATE CHALLENGES

Once the plan has been devised, communicate it in writing to employees. It is important to advise employees of the company's plan to reopen and under what conditions. Employees may be anxious and wonder when return to work will be possible. Employees may also challenge the plan or the employer's request to return to work. Employees may be concerned about safety and may find protection under OSHA, CalOSHA or the NLRB. Be prepared to address employee concerns and communicate any changes or updates to the plan. Even if the company hasn't reopened and employees are working remotely it's important to let employees know that the company has a well thought out plan and, when it is able to reopen, employees can return without concern for their safety. Encourage employee feedback and incorporate employee suggestions into the plan when it makes sense.

TRAIN EMPLOYEES

It isn't enough to simply distribute the return to work plan to employees. Employees must receive training on the importance of the plan and adhering to its terms, the rationale for certain requirements like temperature checks and the use of PPE, how to prevent the spread of COVID-19, how to recognize the symptoms of COVID-19 and what to do if you are infected. Employees should understand their responsibilities to socially distance, how to properly clean and disinfect their work space, and the employer's plan to clean and disinfect high traffic areas. Training should include not only expectations of employees' conduct but how the employer intends to handle vendors, visitors and others that enter the worksite.

Training should assure workers that the employer has taken steps to insure the worksite is safe and the employer has taken all reasonable steps to insure the safety of those entering the worksite. Employers should be prepared to retrain employees as conditions change and the plan is revised.

A well thought out plan, proper distribution of the plan, and training may protect employers against OSHA or Cal/OSHA complaints of unsafe working conditions.

COMMUNICATE THE PLAN TO VENDORS AND OTHER IMPORTANT ON SITE PERSONNEL

Communication with vendors, suppliers, and those constituencies with on site personnel is also important. It's important to satisfy a company's key business partners and relationships that it has considered guidance from the state, CDC, and OSHA in devising and implementing the plan. Communication with these partners before implementation of the plan is important so there is no unforeseen problems with implementation when the company is reopened for business. Although no plan will be satisfactory to all listening to concerns from your key partners will help you to finalize a workable plan for all.

ACTIVELY ASSESS AND MONITOR POLICY COMPLIANCE

It's critical that employers not only implement policies and practices but monitor them to ensure they remain effective as the situation changes. That effort might include training, retraining, observing, inspecting, updating policies and practices and correcting hazards and noncompliant behaviors. All efforts should be documented thoroughly should there be a complaint to OSHA or Cal/OSHA, if either agency inspects the facilities or to defend against discrimination or whistleblower claims.

AMEND POLICIES AND PRACTICES –– BE FLEXIBLE

As the pandemic unfolds and we learn more about the virus –– how it spreads, who is most likely to be infected severely, treatment options and vaccines –– employers must remain vigilant and flexible in how they react.

If a second wave of illness occurs, or additional guidelines are released, employers should adapt, and revise workplace policies with dispatch.

OSHA AND CAL/OSHA RECORDING AND REPORTING REQUIREMENTS

Most employers with 10 or more employees are required to record certain injuries or illnesses under OSHA and Cal/OSHA. Even if a business is exempt from the record-keeping requirement, all employers must report certain serious injuries or illnesses. To determine which employers are subject to record keeping under OSHA, see https://www.osha.gov/recordkeeping/ and under Cal/OSHA, https://www.dir.ca.gov/dosh/etools/recordkeeping/index.html.

When employers record injuries and illnesses, the information usually is reported to OSHA or Cal/OSHA only as statistics. Either agency may request additional information. In California, covered injuries and illnesses are recorded on Form 300 –– Log of Work-Related Injuries and Illness. An in-depth review of OSHA and Cal/OSHA reporting requirements is beyond the scope of this guide. Employers are encouraged to review the OSHA and Cal/OSHA websites for further details on record keeping and reporting.

It's not easy to determine whether COVID-19 must be recorded or reported, as clear guidance has not emerged and it can be impossible to know if someone contracted the virus at the workplace.

RECORDABLE INCIDENTS

Cal/OSHA and OSHA agree that employers must record cases of COVID-19 only if all of these apply:

• The case is confirmed as COVID-19.
• The case is work related, as defined by 29 C.F.R. § 1904.5.
• The case involves one or more of the general recording criteria defined in 29 C.F.R. § 1904.7 (that is, medical treatment beyond first aid, or days away from work).

Cal/OSHA follows OSHA guidelines with respect to when COVID-19 is considered to be a confirmed case –– when an individual has at least one respiratory specimen that tested positive https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.

An illness is work related “if an event or exposure in the work environment either caused or contributed to the resulting condition ....” The regulation defines several exceptions for illnesses that occur in the work environment, but are not work related. One notable such exception is an illness that “involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment” –– such illness is not recordable. But determining where, when and how an individual contracted COVID-19 is nearly impossible, and Cal/OSHA does not provide clear guidance.

For cases in which “it is not obvious whether the precipitating event or exposure occurred in the work environment or occurring away from work,” the employer “must evaluate the employee’s work duties and environment” to determine work relatedness. That means employees in a high-risk environment –– a hospital or first response agency –– are more likely to become infected through work than an office worker who is teleworking. If multiple employees contract the illness, of course, it's more likely that the infection was contracted at work.

REPORTABLE INCIDENTS

Cal/OSHA requires that employers report by telephone within eight hours "any serious injury or illness, or death, of an employee occurring in a place of employment or in connection with any employment." Cal/OSHA defines "serious injury or illness" as "any injury or illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization for other than medical observation or diagnostic testing...." The critical inquiry for reporting purposes is whether COVID-19 was contracted "in a place of employment or in connection with any employment" and, for reporting purposes, required "inpatient hospitalization."

Given the confusing and conflicting guidance, a prudent California business should make the telephone report, or at least seek advice from a Cal/OSHA intake officer about whether the infection is reportable. Deciding if the illness was work related has far-reaching consequences, so the decision should be made in consultation with an experienced OSHA attorney and/or a workers’ compensation attorney. By taking some action, a California business might avoid an OSHA citation or penalties.

POTENTIAL CONSEQUENCES OF NONCOMPLIANCE WITH OSHA AND CAL/OSHA REQUIREMENTS

OSHA and Cal/OSHA have inspection and audit rights, and also the authority to impose significant penalties. They can even shut down a business. These are all possible consequences of noncompliance:

• OSHA and Cal/OSHA inspections resulting from employee complaints or reports of serious illness or injury (possibly including multiple incidents of workplace COVID-19);
• stop-work orders and red tags if an inspection finds imminent hazards;
• Cal/OSHA monetary penalties of more than $10,000 without penalty enhancements for a "serious" citation;
• criminal liability (See https://www.dir.ca.gov/dosh/Enforcementpage.htm).

Civil lawsuits brought by employees for unsafe working conditions or retaliation for making health and safety complaints also might result from an employer's failure to take seriously its responsibility to assess risk, determine best practices to protect the health and safety of employees and implement effective policies and practices.

RETALIATION IS PROHIBITED

The COVID 19 pandemic probably will prompt an uptick in workplace health and safety complaints. Employers should be cautious in how they respond to such employee actions. Taking adverse action against any employee because he or she made a health and safety complaint could be considered retaliatory.

Employees who make a good-faith oral or written complaint about their workplace safety to the employer, the employee’s representative (a union rep) or governmental agencies are protected from retaliation even if the complaint turns out to be unfounded.

Practice Tip: Employers should consider how they respond to an employee who wants to stay home because he or she fears that the workplace is unsafe. If you believe that you have implemented policies and procedures that comply with OSHA, Cal/OSHA and CDC guidelines, you may choose to tell the employee that the leave is not authorized. But do so with caution. If you are uncertain that your policies and procedures are fully compliant with federal and state guidelines, you might want to approve the absence. If you grant one employee's request, however, you might be required to grant all such requests. Granting the employee’s request to stay home might be the best response, especially if the workplace has a high risk of exposure, multiple employees have contracted COVID-19 and/or the individual making the request is at higher risk of developing complications from the illness.

CONSIDER ESTABLISHING A PANDEMIC COORDINATOR OR PANDEMIC TEAM

The American Medical Association believes that there's a 75% chance of a second wave of COVID-19 cresting in the summer or fall https://www.ama-assn.org/delivering-care/public-health/what-s-ahead-covid-19-expert-offers-forecast-summer-fall.

Now is the time to develop contingency plans to deal with a potential second stay-at-home order or enhanced social distancing requirements.

An employer's return-to-work plans might include designating a pandemic coordinator and/or team with defined roles and responsibilities for proper response. The size of the team and its responsibilities should reflect the level of risk the business faces from potential or actual COVID-19 exposure. As explained above, certain businesses are considered a very high risk, while others are low risk. So, at a hospital, almost all employees might be members of the pandemic team. In an office setting, a single pandemic coordinator probably would suffice. Employers should invite staff members with expertise and awareness of equal employment opportunity laws to be on the team, or at least consulted in the planning. If the business is large enough, employees with disabilities should be included in planning discussions.

Employers are not allowed to ask an employee to disclose if he or she might be more vulnerable to complications from COVID-19, or to question whether the worker has a compromised immune system or a chronic health condition. But an employer probably can identify which employees might not be available for work during a pandemic by making inquiries that are not related to disability. An inquiry is not disability related if its purpose is to identify potential nonmedical reasons for absence during a pandemic. For example, an employer may ask about the effect if public transportation is unavailable during a pandemic. Such nonmedical inquiries should be structured so that the employee can answer "yes" or "no" without specifying what applies only to him or her. The answer need not be anonymous. The EEOC has an ADA-compliant pre-pandemic employee survey for making proper medical information requests https://www.eeoc.gov/facts/pandemic_flu.html. Here it is:

Directions: Answer yes to the whole question without specifying the factor that applies to you. Simply check "yes" or "no" at the bottom of the page.

In the event of a pandemic, would you be unable to come to work because of any of these reasons:

1. If schools or daycare centers were closed, you would need to care for a child.
2. If other services were unavailable, you would need to care for other dependents.
3. If public transportation were sporadic or unavailable, you would be unable to travel to work. and/or
4. If you or a member of your household falls into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (for example, pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer: Yes _____ No _____

Employers concerned about staffing levels in the event of a second wave of the illness should consider implementing a similar survey. If you intend to deviate from the approved EEOC model you are strongly encouraged to consult employment counsel to ensure that the survey is not discriminatory and that you are not inadvertently violating disability or privacy rights of employees.

FAQs ON RETURN TO WORK

After shelter-in-place orders are lifted, can we ask an employee to stay home or leave work if they exhibit symptoms of the COVID-19 coronavirus or the flu?

Yes. Shelter-in-place orders being lifted does not mark the end of the pandemic. The CDC states that employees who exhibit symptoms of influenza-like illness during a pandemic should leave the workplace. Moreover, employers should continue to monitor their workforces for indicative symptoms and not allow symptomatic individuals to physically return to work until cleared by a medical provider.

Can an employee refuse to return to work if a shelter-in-place order is lifted?

Employees are only entitled to refuse to work if they believe they are in imminent danger. OSHA defined “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminent of such danger can be eliminated through the enforcement procedures otherwise provided by this act.” OSHA Section 13(a). The threat must be immediate or imminent and the employee must believe that death or serious physical harm could occur within a short time. For example, requiring employees to work with patients in a medical setting without PPE may rise to this threshold. However, if an employer has followed CDC, OSHA, and state return-to-work guidelines, and performed a risk assessment and developed a return-to-work plan focused on protecting employees and members of the public most workplaces would not meet the elements required for an employee to refuse to work.

Section 7 of the National Labor Relations Act (NLRA) extends broad statutory protections to employees to engage in “protected concerted activity for mutual aid or protection.” Such activity has been defined to include circumstances in which two or more employees act together to improve their employment terms and conditions, although it has been extended to individual action expressly undertaken on behalf of co-workers. Such action can include talking with one or more employees about working conditions, participating in a concerted refusal to work in unsafe working conditions, and joining with co-workers to talk to the media about problems in the workplace. Employees are generally protected against discipline or discharged for engaging in such activity.

Keep in mind, if you terminate an employee who refuses to work, even where there is no imminent danger, the employee may still file an OSHA whistle-blower claim. If you can establish that there was no imminent hazard to your employees and your company complied with OSHA and CDC Guidelines, the whistle-blower complaint may be dismissed. However, it is important for employers to be mindful of how they treat their employees following any type of complaint even if the complaint appears baseless. If you have any questions about how to handle employees who complain about unsafe work, conditions or who refuse to return to work, contact us for advice.

Can an employee refuse to return to work if they are above 65 years old and feel unsafe?

Only if they reasonably believe they will be in imminent danger as provided under the OSHA standard. The CDC has identified the elderly as an at-risk group for a higher risk of serious illness so an employer should consider alternatives to requiring an employee in an at-risk group from returning to work. Alternatives include things like teleworking, offering enhanced PPE like gloves, gowns etc., or changes in schedule. Be sure to document all alternatives discussed and the employees response.

After shelter-in-place orders are lifted, can we require an employee to notify the company if they have been exposed, have symptoms, and/or have tested positive for the COVID-19 coronavirus?

Yes. It doesn’t mean that the pandemic has passed when shelter-in-place orders are lifted. Employers are advised to have policies and plans notifying employees of their obligation to inform the company if they have symptoms of coronavirus, have been exposed, or have tested positive. In addition, companies should have written policies as to actions it will take in response to such disclosures.

Taking Employee Temperatures and Other Medical Tests

After shelter-in-place orders are lifted, can I take an employee’s temperature at work to determine whether they are infected?

Yes. Until further notice, companies may continue to operate under the EEOC’s guidance, which confirms that measuring employees’ body temperatures is permissible. California employers must comply with the California Consumer Privacy Act (CCPA) and provide employees a CCPA Compliant Notice prior to or at the same time as their collection of this information. Moreover, California guidance for the reopening of specific industries allows for symptom checks and temperature checks of employees.

If we are not required to do so, should we take our employees’ temperatures?

Perhaps. The CDC recommends screening employees for fevers of more than 100.4 degrees, and California’s industry specific guidelines recommends the taking of temperatures at the beginning of a shift or, if appropriate, allowing employees to take their own temperature prior to their shift. If you decide to screen your employees, also plan to check the temperatures of guests, clients, vendors, and contractors to ensure safe work environment. Understand that many individuals infected with COVID-19 will not exhibit any symptoms, and thus, temperature screening likely will not prevent all workers who can transmit the disease from entering your work site. As a result, symptom screening at the beginning of each shift in combination with taking employees’ temperatures might provide a more complete assessment of whether the employee is exhibiting symptoms or perhaps is infected.

Should we collect medical information from employees when taking their temperatures?

It is not recommended unless required by local or state law. While taking temperatures or conducting other screening of employees prior to their shift, if you collect or distribute any medical information about an employee, it makes the likelihood of a privacy-related claim concerning the storage of the information more likely. Instead, use a real-time thermometer and immediately inform employees if their temperature is above 100.4 degrees Fahrenheit in a private setting. If an employee exhibit symptoms or a fever, it will be necessary to collect information from the employee to perform adequate contact tracing including gathering the names of all employees or others on the work site with whom they have had close contact in order to notify those individuals of possible exposure.

What precautions are needed for individuals who are taking the temperatures of employees, customers, vendors, or contractors?

The safest procedure is to assume the tester is going to be exposed potentially to someone who is infected who may cough or sneeze during their interaction. Based on that anticipated exposure, determine how you may eliminate or minimize the hazard, including requiring the tester use PPE.

What else should we keep in mind if we decide to take our employees’ temperatures?

It is important to maintain proper social distancing as employees and others are waiting in line to be tested. This means employees and others should be standing six feet apart or more, which can be accomplished by marks on the floor or some other visual device. Depending on the number of employees that need to be screened prior to each shift consider whether delays and disruption could occur to normal work activities. Be prepared to create waiting areas or other socially distanced locations where employees can wait prior to entering the facility. Be careful to ensure employee privacy, especially where results are announced. In California, employers will be required to pay nonexempt employees for the time required to take their temperatures or gather their symptoms. This will require the employer to implement a system to have employees clock in when they get in line for screening in order to accurately document their time.

Masks in the Workplace

Can employers refuse an employee’s request to wear a medical mask or respirator?

Possibly, but under most circumstances, it is not recommended. Employers should allow their workers to wear reasonable PPE if it makes them feel safe. In fact, it is recommended that in most cases, as employees are returning to the work site, they be asked to wear facemasks and to socially distance to avoid spread of the illness. In fact, the CDC has issued guidance recommending the wearing of cloth face coverings in public settings especially where other social distancing measures are difficult to maintain. This guidance remains in effect. Given this guidance from the CDC, it is recommended than an employer not refuse an employee’s request to wear mask.

What should you do if an employee claims they have a medical condition that prevents them from wearing a mask or face covering?

The employers should engage in the ADA required interactive process with the employee. The interactive process should include requesting medical certification from the employee’s treating physician sufficient to determine whether the employee has a disability that requires accommodation. If so, the employer can ask questions to determine whether or not there are options or alternates available to the employee besides the wearing of face covering. Accommodations could include schedule changes, teleworking, or leave.

A customer or guest has indicated that they are exempt from any facemask requirement due to an underlying medical condition, and refused to provide any further information. What should we do?

Businesses should post a notice at the entrance of the facility and on their website that patrons are required to wear a facemask to enter the place of business, and that they reserve the right to refuse service to anyone not complying with the requirement. It is not recommended that you ask for medical documentation of the condition to prove the individual’s medical condition. Instead of engaging in a discussion about whether they are exempt from the rule, consider offering them alternate accommodations that would allow them to either access the business or the business’ products/services, such as through curbside service, or allowing them to enter at another time if they are wearing a full clear face shield. If you are unable to accommodate the individual with alternatives, you may advise the individual that they may not enter the work site at that time, but may do so if they return wearing a face covering or full clear face shield.

Should you pay for face coverings that employees wear?

If you require employees to wear face coverings, you should pay for them as PPE.

Employment Handbooks, Policies and Best Practices

What policies may be impacted or need to be changed due to the COVID-19 pandemic?

Employers may need to implement measures to ensure the health and safety of employees and may need to change other policies and practices to accommodate a new normal. A thorough analysis of existing policies should be undertaken to include adjustments made for recent legislation. Some of the policies may include:

· Vacation/Paid time off

· Attendance

· Work hours, including start/stop time, breaks, lunch times, flexible hours, and staggered work hours

· Time keeping including clock-in/clock-out procedures

· Leave policies, including sick leave

· Remote work

· Travel policies, including business and personal travel

· Information technology and usage

When returning employees to work, can we or should we issue new policies and handbooks?

Employers who are not otherwise limited by a collective bargaining agreement can issue new policies or handbooks when returning employees to work. Indeed, it may be a good opportunity to update handbooks and other policies with regard to your company’s new return-to-work plan.

Our employees have been on furlough, can we call them back to work, or do we need to treat everyone as a new hire?

In general, returning employees from furlough or a temporary layoff do not need to be rehired in the traditional sense. If the employee stayed on your payroll you can simply return the employee to their prior position. You should document the return-to-work day using your normal personnel action form document. If there are changes to wages and benefits for the returning employee, those changes must be communicated in writing to the employee before they become effective.

What required posters must I have in the workplace?

Employers are obligated to post numerous employment law related posters in locations throughout their work site. Every employer covered by the Families First Coronavirus Response Act (FFCRA) must post in a conspicuous place on its premises a notice of the statute requirement. You may satisfy this requirement by emailing or mailing the notice to employees or posting it on the internal or external website.

Remote Work Considerations

We would like to continue our teleworking plan we currently have in place. What do we need to keep in mind?

First, assess your technological capabilities. Did you implement security and privacy protocols to protect your business or do you need to add these protocols?

Second, determine whether your remote workers have the equipment needed to get their job done. Can you ensure they will continue to have access to the proper equipment? Can you provide remote help desk assistance on a long-term basis?

Third, consider how to effectively communicate with your remote workers and they will communicate with you and each other. How will time records be kept and attendance tracked? How will overtime be policed? These considerations are especially important for non-exempt employees who must keep track of their time and attendance for wage and hour purposes.

How will productivity be measured? In addition, consider whether you need to reimburse employees for expenses? Are you requiring employees to use their own equipment? If so, reimbursement will be necessary. For example, will you pay a portion of an employee’s phone bill or internet charges?

Workers compensation may be available for any injuries suffered by an employee while working remotely. Do you have safety standards or practices that employees should adhere to while working remotely? These issues are covered extensively in Sullivan on Comp Chapter 5 and addressed in the Workers Compensation section Injuries While Working at Home in this guidebook.

Finally, draft a robust remote work policy or review your existing policy to determine whether it needs updating. A remote work policy needs to be adjusted to fit your business needs and your organization’s expectations for your workforce, including that you might need separate policies for exempt and nonexempt employees.

When shelter-in-place orders were enacted, we allowed remote work without a policy or procedure. Now that things have calmed down, should we be more formal about remote work?

Yes. It is important to develop an appropriate standardized teleworking plan that addresses your business’ needs for when the crisis is over.

Return to Work and FFCRA Paid Leave and Emergency FMLA

Does the Families First Coronavirus Relief Act (FFCRA) still apply to my rehired employees?

Yes. If you recall an employee any time before December 31, 2020, and the person indicates that they are unable to return because of one of the qualifying reasons for Emergency Paid Sick Leave benefits or Emergency Family and Medical Leave, under the FFCRA, they will be entitled to the monetary benefits. Further, if an employee returns to work, and then requires emergency paid sick leave or expanded family rights leave they will eligible for these benefits until December 31, 2020.

If we rehire an employee, do they need to work for 30 days before becoming eligible for expanded FMLA leave?

Not necessarily. The FFCRA was amended to provide that if an employee was laid off or otherwise terminated on or after March 1, 2020 and rehired or otherwise re-employed by the employer on or before December 31, 2020, they will be entitled to expanded FMLA if they had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the layoff or termination.

If we rehire employees and now we have 500 or more employees, can employee still request sick leave or expanded FMLA?

No. The 500 or more employee count is calculated at the time sick leave or expanded FMLA leave is requested. However, if your workplace is in a county or city that has expanded these benefits to larger employers, then employees would be eligible at that time.

If we hire a new employee as part of our return-to-work operations, and they used their sick leave at their last employer, are they entitled to another 80 hours of sick leave with our company?

No. The US Department of Labor regulations specify that any person is limited to a total of 80 hours of sick leave. However, an employee who has taken some, but fewer than 80 hours of sick leave, and then changes employers he is entitled to the remaining portion of such leave from their new employer, but only if the new employer is covered by the FFCRA.

When our operation was closed, an employee requested pay for emergency sick leave, under the FFCRA can we choose not to bring that employee back?

Although the employee was not qualified for FFCRA leave while your operations were closed, choosing not to bring an employee back based on their request for FFCRA leave could be viewed as discriminatory and retaliatory. The decision on who to return to work should not be based on your knowledge of an employee’s request or potential need for FFCRA leave.

SEE ALSO

• "Sullivan on Comp" Chapter 11: Return to Work

REFERENCES

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