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.

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, Gov. Newsom issued a four-stage plan with six components (explained below) to reopen the state, a road map to modify the stay-at-home orders mindful of specific counties' requests to reopen. The governor's plans can be found here. [1].

Six Bay Area counties and the city of Berkeley 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.

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. They also must post a Social Distancing and Sanitation Protocol, under which businesses are to develop and post specific plans for health screenings, for maintaining social distancing and for regular sanitation. The county will provide a template. Finally, each business must prepare and post a Safe Reopening Plan, for which forms are available on the county's website.

Employers must prevent employees showing temperatures above 100 degrees from entering the facility, or if they have a cough, shortness of breath, trouble breathing or at least two of these symptoms:

• fever
• chills
• body aches
• sore throat
• loss of smell or taste.

Symptom-screening may be performed if a thermometer isn't available. We expect other counties will follow this example, especially because the state of California has endorsed temperature- and symptom-checking as part of its reopening guidance. The order can be found in Appendix A.

On May 22, the City and County of Los Angeles issued an updated order and has begun allowing specific retail and low-risk businesses to begin reopening. That's possible only if the business can keep a low incidence of person-to-person contact, and ensure continued social distancing. The protocol allows retailers not located within an indoor mall or shopping center, and manufacturing and logistics sector businesses to reopen as long as these rules are followed:

• Members of the public aren't allowed inside the retail establishment, but customers may be provided goods and services via curbside, doorside, outdoor and at-home delivery or pickup.
• The retailer prepares, implements and posts Reopening Protocols for Retail Establishments] issued by the Department of Public Health.
• Other sector businesses prepare, implement and post the reopening protocol for specific business.

Currently, these business- and activity-specific reopening protocols have been published:

• beaches
• bike parts
• car dealerships
• community gardens
• equestrian centers
• golf courses
• manufacturing/logistics
• model airplane areas
• outdoor shooting facilities
• retail establishments
• substance use disorder and mental health
• tennis/pickle ball courts
• trails
• warehousing

Each protocol requires employers to conduct symptom checks before employees are permitted to enter the workspace. They also state that a temperature check should be done at the work site if feasible. Unfortunately, there is no guidance about what is considered feasible. Although there is some overlap among the protocols, there are differences. So, prior to reopening, businesses must evaluate the protocols specific to their sectors. Failure to comply with the county orders and health protocols subject noncompliant businesses to deprivation of utilities, fines and/or misdemeanor liability.

Given the disparity among cities and counties, employers should always refer to the order applicable to the city or county in which they do business. Links to county orders can be found at Appendix — Web Links For Local Safety Orders.

CALIFORNIA REOPENING REQUIREMENTS

California's plan to reopen has four stages addressing safety and preparedness, lower-risk workplaces, higher-risk workplaces and 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 guidelines. The advisory is not permission for these industries reopen –– it's a road map of preparation for reopening. Guidance was issued for:

1. office workspaces
2. retail
3. dine-in restaurants
4. shopping malls, destination shopping centers, strip and outlet malls and swap meets

Cities and counties are not required to follow the governor's plan; they may enforce stricter guidelines. The San Francisco Bay Area's six counties, with stricter orders in place, will not open immediately. 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 county orders are found in the next section, Appendix — Web Links For Local Safety Orders.

WORK SITE-SPECIFIC PLANS

All work site-specific plans must:

• include a written prevention plan following a comprehensive risk assessment;
• supply contact information for the local health department;
• train and communicate the plan to employees;
• regularly evaluate the workplace for compliance;
• investigate COVID-19 illness and determine if any work-related factors could have contributed to the risk of infection; and
• identify close contacts of the affected person, and isolate them.

Employers also should update the injury and illness prevention program (IIPP) to protect employees from workplace hazards. The work site-specific plan should be incorporated into the IIPP and be posted and available to employees.

WORK SITE-SPECIFIC TRAINING REQUIREMENTS

All work site-specific plans must educate and train employees. The material must include:

• information on how to prevent COVID-19 and what health conditions might make individuals more susceptible;
• home self-screening for temperature and other symptoms using CDC guidelines;
• the importance of not coming to work if they have a frequent cough, fever, difficulty breathing, chills, muscle pain, headache, recent loss of smell or taste or if they live with someone who has been diagnosed;
• advice to seek medical attention if symptoms become severe;
• the importance of frequent hand-washing with soap and water per CDC guidelines;
• the importance of physical distancing both at and away from work; and
• the proper use of face coverings.

WORK SITE-SPECIFIC CONTROL MEASURES AND SCREENING REQUIREMENTS

Each work site-specific plan has unique control measures and screening requirements. We encourage you to carefully review the specific plan for your industry, and to comply with all of its requirements. These control measures and screening requirements apply to all work sites:

• Provide temperature and/or symptom-screenings for all workers at the beginning of the shift. Screen vendors, contractors and visitors entering the establishment.
• Encourage workers who are sick to stay home.
• Provide all workers with appropriate and required protective equipment, and ensure their use.
• Consider whether disposable gloves are a valuble supplement to hand-washing.
• Face coverings are strongly recommended when employees are in proximity to others.
• Post signage to remind the public to use face coverings and to practice physical distancing.

Unique cleaning and disinfecting protocols are established for each industry. Employers should review the requirements for their industry and incorporate these best practices into their return-to-work plans.

Guidelines for physical distancing were established for each industry. Again, employers should review the requirements for their industry and incorporate them into their 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's requirements and advisories, including Cal/OSHA, as well as those of the CDC and OSHA.

REQUIREMENT TO WEAR FACE COVERINGS

Gov. Gavin Newsom issued an executive order June 18, 2020 mandating that people in California wear cloth face coverings when they are outside their home. Guidance about the use of face coverings was updated by by the California Department of Public Health. That site defines cloth face covering as material that covers the nose and mouth, can be secured to the head in a variety of ways and can be made from a variety of materials. The face coverings can be purchased or handmade.

The mandate applies to the workplace. Employees must wear face masks while at work in these situations:

• 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;
• 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;
• 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.

There are exceptions to the face-covering requirement:

• persons with a medical condition, mental health condition or disability that prevents wearing a face covering (including those with a medical condition for whom wearing a face covering could obstruct breathing or who are otherwise unable to remove a face covering without assistance);
• children younger than 2 years;
• persons who are hearing-impaired, or communicating with a person who is hearing-impaired, when the ability to see the mouth is essential for communication;
• persons for whom wearing a face covering would create a risk related to their work, as determined by state, local or federal regulators or workplace safety guidelines;
• persons seeking a service involving the nose or face for which temporary removal of the face covering is necessary to perform the service;
• persons at a restaurant and who are eating or drinking, provided they can maintain a distance of at least 6 feet from those who are not members of the same household or residence;
• persons who are engaged in outdoor work or recreation when they are able to maintain a distance of at least 6 feet from others.

Employees exempted from wearing a face covering due to a medical condition must wear a nonrestrictive alternative, such as a face shield with a drape on the bottom edge, as long as their condition permits it.

There is no information about how the mandate will be enforced or whether there will be penalties for violations.

Employees must possess a face covering while at work. The directive seems to require employees in the food industry, retail workers, health-care workers and others that serve the public to wear face coverings at all times regardless of whether customers or patients are present. Employees in other industries that don't regularly interact with the public, such as office workers and some high-tech workers, aren't required to wear face coverings at all times while at work, but they must wear them when in common areas or if their work requires them to visit with or meet members of the public, such clients, suppliers, or visitors. Presumably, manufacturing, factory workers and others who are unable to socially distance while at work will be required to wear face coverings even if they don't engage with members of the public.

The mandate doesn't address what type of documentation an employer may require from its employee who claims an exemption from the face covering requirement for medical condition or disability. Presumably, if the disability or medical condition isn't obvious (such as hearing impairment), an employer may request the employee to provide medical documentation of the need for the exemption just as it requires documentation of the need for an accommodation for a disability.

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, what personal protective equipment might be required and ways to ensure that modifications are made prior to employees returning to work, such as procuring protective equipment in advance.

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 Cal/OSHA 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.

California has issued industry-specific guidance to enable companies to provide a safe, clean environment for returning workers. See the subsection 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 reflect county health orders. It's not a substitute for existing safety and health-related regulations per 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, mindful of what the other agencies advise.

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 that each return-to-work plan or policy be work site-specific, which requires risk assessments and careful review of the work site. Pay close attention to high-traffic areas, socially distancing employees, whether use of PPE is necessary, how and where to clean and disinfect, and industry-specific employee training.

Given the new reality of business that will include, among other things, remote work, testing, monitoring, social distancing and the use of personal protective equipment, all California employers should review their employee handbooks to ensure 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, Cal/OSHA, CDC, 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 who 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. Many might be anxious and wonder when returning to work will be possible, and under what conditions. Some also might challenge the plan or even the employer's request to return to work. Some might be concerned about safety, and seek protection under OSHA, Cal/OSHA or the National Labor Relations Board. Be prepared to address employee concerns, and communicate any changes or updates to the plan with dispatch. Even if the company hasn't reopened and employees are working remotely, it's important that they know the company has a well-considered plan to reopen and, when it's time, that employees can return safely. Encourage feedback and incorporate employee suggestions into the plan when it makes sense.

TRAIN EMPLOYEES

It isn't enough simply to distribute to employees the return-to-work plan. They must understand its importance, and be trained to adhere to its directives. They must understand the rationale for certain requirements such as temperature checks and the use of PPE, how to prevent the spread of COVID-19, how to recognize its symptoms and what to do if they are infected. Reinforce their responsibilities to socially distance and to properly clean and disinfect their workspace. Make sure they understand the employer's plan to clean and disinfect high-traffic areas. Employees should be trained not only about their expected conduct, but how the business intends to manage vendors, visitors and others who enter the work site.

Workers should be assured that the employer has established a safe work site. Employers should be prepared to retrain employees as conditions change and the plan is revised.

A well thought-out plan, proper distribution of it and training to promote compliance help 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 other on-site personnel helps to satisfy a company's key business partners that it has embraced guidance from the state, CDC and OSHA in devising and implementing the plan. Communicating with them before implementing it demonstrates attention to their concerns. Although no plan will be satisfactory to everybody, listening to concerns from your partners will solidify relationships and help to craft a workable, final 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.

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.

PAYCHECK PROTECTION PROGRAM AND LOAN FORGIVENESS

The Paycheck Protection Program (PPP) is discussed in-depth in this book's Paycheck Protection Program section. The program provides forgivable loans for as much as $10 million to small businesses. The loans are forgivable if enough of the money is spent on certain things, the most important of which is payroll.

For purposes of returning to work, employers that receive a PPP loan must understand how payroll expenses count toward the forgiveness. Employers generally have until the end of the year to spend the money per the stated guidelines. Such expenditures can include hiring back employees who were laid off or furloughed. Study the specific terms and conditions for forgiveness in Paycheck Protection Program.

EMERGING TRENDS IN COVID-19 LAWSUITS AND WORKPLACE CLAIMS

As the U.S. continues to struggle with the impact of the COVID-19 pandemic on health, safety and the economy, employers must face yet another potential crisis — lawsuits surrounding decisions made and actions taken in response to COVID-19.

More than 2,000 lawsuits related to COVID-19 have been filed in federal and state courts. They include claims from customers and clients about COVID-19 exposure, claims from employees alleging unsafe workplaces and safety issues, discrimination claims and claims of wrongful employment termination. It's no surprise that dozens of these claims have been filed in California courts by California employees.

As employers know, California has myriad laws and regulations under which employers may file claims. Moreover, with the rapid, and sometimes haphazard pace at which federal, state and local governments have issued laws, orders and ordinances, California employers are confused about their responsibility to their employees. They are uncertain about how to proceed in light of what seems to be constantly changing terrain and the guidance to navigate it. Businesses must ensure that they are aware of changes to federal COVID-19 laws and requirements, California state orders and regulations and local ordinances that impact employees working in certain cities and counties.

Following are common topics of legal claims relating to COVID-19 of which employers should be aware.

Paid Leave

The Families First Coronavirus Response Act (FFCRA), a federal statute, requires businesses with fewer than 500 employees to provide paid leave to their eligible employees for coronavirus-related reasons. See this book's previous sections, Families First Coronavirus Response Act, Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act for a complete description of the law.

State laws require other types of leave, paid and unpaid, and, increasingly, cities and counties have adopted paid sick leave ordinances applicable to people who work within city and county borders. For example, San Jose, San Francisco, Oakland, Los Angeles, San Diego and other local governments have expanded sick leave policies. Some cover employers with 500 or more employees who are specifically excluded from the FFCRA, and some ordinances provide greater benefit than the FFCRA. See the section California Resources — Unemployment and Disability Insurance, Paid Family Leave, Paid Sick Leave and its subsections, Paid Family Leave and Paid Sick Leave. Lawsuits alleging failure to comply with the required leave laws have been filed, as have allegations of retaliation for taking advantage of federal, state or local leave allowances.

Businesses should be familiar with their obligations under the FFCRA, other federal leave laws including the Family Medical Leave Act (FMLA), and state and local ordinances concerning expanded sick leave. Again, employers who operate in this state, especially those with employees in several cities and counties, must understand their obligations under these local ordinances. It is especially important to check frequently with city and county government — local governments update and expand their initial laws as conditions change and the pandemic surges in various communities.

Discrimination Claims

As layoffs occur and unemployment rises, we typically see a concurrent increase in discrimination claims. Given the unprecedented level of unemployment created by the pandemic, we're starting to see discrimination claims filed by employees who believe they have been mistreated or suffered adverse treatment by their employer in making employment decisions resulting from the COVID-19 pandemic.

For example, a former employee filed suit alleging that his employer chose only Black employees for furlough and layoff. Another case alleges that the employee was selected for layoff because of his age. He further alleges that younger employees were either not furloughed or recalled from layoff while he was not, despite being a long-term employee. It's important that employers know that they may not refuse to allow older workers or pregnant employees to return to work if they choose to, even if the employer believes that it's protecting them from risk by not allowing it.

Employment decisions should be scrutinized to avoid the appearance of discrimination. Disabled employees, including those who are vulnerable to COVID-19 because they have co-morbidities, may be protected by the Americans with Disabilities Act and the California Fair Employment and Housing Act. Employers must tread carefully in dealing with their disabled employees; they must be flexible and creative when such employees request accommodations such as telework and changed schedules or shifts. Companies must contemplate changing policies or practices to protect their disabled employees from exposure to COVID-19.

Reductions in Force and Downsizing

Employers have been forced to downsize their workforces in the wake of the pandemic. Some have chosen to do so temporarily through furloughs, and others through permanent layoffs. Businesses must understand their obligations under the federal Worker Adjustment and Retraining Notification (WARN) Act. That statute applies to larger employers and those that choose to cease operations completely, which requires notifying employees, certain government agencies and unions.

Although California temporarily has eliminated the advance notification requirement of the Cal-WARN statute, employers must determine if they have obligations under the federal law. For more information, see the previous section in this book, Federal and California Worker Adjustment and Retraining Notification Acts. In addition to these laws, employers should be mindful of how they choose employees for furlough and layoff. Decisions about who is selected should be made based only on business reasons, not protected-worker characteristics: The pandemic is not an excuse to eliminate only older employees, or members of other protected categories. Making furlough and layoff plans should include consultation with an employment attorney so that, if challenged, the furlough and layoff choices can be appropriately defended. Failing to carefully plan furloughs and layoffs can result in claims for wrongful termination and discrimination claims.

Health and Safety Claims

State and city laws, regulations and ordinances include guidance for how employers should prepare to open and maintain business operations to ensure the health and safety of their employees and customers. Much of the early litigation was initiated by exposed or infected employees alleging that their employers had improperly, unsafely and without regard for their health and safety failed to institute practices that would have prevented their COVID-19 exposure or infection. Some of the infection claims might be superseded by California workers' compensation if the infection was contracted at work. But health and safety claims alleging violations of OSHA and Cal/OSHA, CDC guidelines and state mandates can lead to wrongful termination claims if employees are forced to resign or terminated as a result of filing health and safety complaints. Employers are reminded to review CDC guidelines, California executive orders, Cal/OSHA guidance and local city and county ordinances that might apply to employees who perform work in various locales.

The coronavirus prompted federal, state and local governments to enact laws to protect employees and assist them if they contract the virus. The pandemic has imposed economic hardship, and employers must make difficult employment decisions about furloughs and layoffs. Given the rapid change in workplace statutes and ordinances, employers must stay abreast of the fluid legal environment and agency guidance to avoid litigation. They must understand what is legally required of them, and why it is important to treat employees fairly within the bounds of the law. All businesses should consult their employment counsel when they have questions about the federal, state and local laws, regulations and ordinances enacted to address the pandemic.

Wage-and-Hour Claims

Many employees are teleworking in response to the pandemic. Initial stay-at-home orders required teleworking for employees whose jobs could accommodate that arrangement. As the economy reopened, many teleworking employees were allowed to return to the workplace, but many continued to work from home. Employers should be aware of California laws pertaining to the proper payment of teleworking employees, including laws related to overtime, meal and rest breaks and reimbursement of expenses. Failure to properly pay employees can lead to multiple claims under the Labor Code or the Private Attorneys General Act (PAGA). See the previous section,Teleworking in Response to the Pandemic, for more information about potential wage-and-hour exposure.

FAQs ON RETURN TO WORK

Relaxed Stay-at-Home Orders

After stay-at-home orders are lifted, may we ask an employee to stay home or leave work if he or she exhibits symptoms of COVID-19 or the flu?

Yes. Lifted stay-at-home orders do not mark the end of the pandemic. The CDC states that employees who exhibit symptoms of influenzalike illness during a pandemic should leave the workplace. And employers should continue to monitor their workforces for symptoms and not allow symptomatic individuals to physically return to work until cleared by a medical provider.

May an employee refuse to return to work if a stay-at-home order is lifted?

Employees may refuse to return to work only if they believe they are in imminent danger. OSHA defines “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 imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” 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 might meet this threshold. But if an employer has: followed CDC, OSHA and state return-to-work guidelines; 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 factors 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 includes 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 might 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 generally are protected against discipline or discharge for engaging in such activity. Be mindful that if you terminate an employee who refuses to work, even if there is no imminent danger, the worker still might file an OSHA whistleblower claim. If you can establish that there was no imminent hazard to your employees and that your company complied with OSHA and CDC guidelines, the complaint might be dismissed. It's important, however, to treat employees fairly following any type of complaint even if it 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.

May an employee refuse to return to work if he or she is older than 65 and feels unsafe?

Only if he or she reasonably believes there's an imminent danger per the OSHA standard. The CDC has identified older people as having higher risk of serious illness, so an employer should consider alternatives to requiring any higher-risk employees to return to work. It might consider teleworking, offering enhanced PPE (gloves, gowns, etc.) or changes in schedule. Employers should document all alternatives discussed and the employee's response.

After stay-at-home orders are lifted, may employers require workers to notify the company if they have been exposed to, have symptoms of and/or have tested positive for COVID-19?

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

Taking Employee Temperatures and Other Medical Tests

After employees return to work, may employers take their temperatures?

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 simultaneously with collection of this information. California guidance for the reopening of specific industries also permits employers to check for symptoms in addition to temperature.

If employers are not required to do so, should they take employee temperatures?

Maybe. The CDC recommends screening employees for fevers of more than 100.4 degrees, and California’s industry-specific guidelines recommend that temperatures be taken at the beginning of a shift or, if appropriate, allowing employees to take their own temperatures before beginning their shifts.

If employers decide to screen workers, they should also check the temperatures of guests, clients, vendors and contractors. Still, some individuals infected with COVID-19 will exhibit no symptoms, so temperature-screening probably will not prevent entry to the work site by everyone who might transmit the disease. Symptom-screening in combination with taking temperatures might provide a more complete sense of whether someone is infected.

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

It's not recommended unless required by local or state law. If an employer collects or distributes any medical information about an employee while conducting a pre-shift screening, the likelihood of a privacy-related claim is greater as it relates to data storage. Instead, using a real-time thermometer, employers should immediately inform workers privately if it measures greater than 100.4 degrees. If an employee exhibits symptoms or a fever, it's necessary to collect additional information for the purposes of contact-tracing. That includes the names of all employees or others on the work site with whom the worker has had close contact in order to notify them of possible exposure.

What precautions should be taken by individuals who conduct the temperature-screening of employees, customers, vendors or contractors?

Assume the tester potentially will be exposed to someone who is infected and who might cough or sneeze during their interaction. Determine how to eliminate or minimize the hazard, which might be to require the tester to use PPE.

What other best practices should employers follow during temperature-screening?

Maintain proper social distancing as employees and others wait to be tested. Businesses might mark the 6-feet interval for people standing in line. Some might create waiting areas where employees can maintain the proper distance prior to entering the facility.

Ensure that there is privacy during screening, especially when results are announced.

In California, employers are required to pay nonexempt employees for the time required to take their temperatures or assess symptoms. Employers should implement a clock-in system for employees awaiting screening.

Masks in the Workplace

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

Possibly, but under most circumstances, it's not recommended. Employers should allow their workers to wear reasonable PPE if it makes them feel safe. In most cases, employees returning to the work site should be asked to wear face masks and to socially distance. 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. Employers should not refuse an employee’s request to wear a mask.

What should an employer do if an employee claims that he or she has a medical condition that prevents him or her from wearing a mask or face covering?

The employer should engage the worker in the ADA-required interactive process. That includes requesting medical certification from the employee’s treating physician sufficient to determine whether he or she has a disability that requires accommodation. If so, the employer may ask questions to determine whether there are options to wearing a face covering. Accommodations could include schedule changes, teleworking or leave.

A customer or guest claims to be exempt from face mask requirements due to an underlying medical condition, and refuses to provide further information. What should the business do?

Notice should be posted at the entrance of the facility and on the company's website that patrons are required to wear a face mask to enter the place of business, and that it reserves the right to refuse service to anyone not complying. Asking for medical documentation to prove the condition is not recommended. Don't engage in a discussion about whether he or she is exempt from the rule. Consider offering an accommodation to allow entry or other access to the business, such as curbside service. Maybe the business can permit entry another time if the customer wears a full clear face shield.

Should the employer pay for face coverings for employees to wear?

If a business requires employees to wear face coverings, it should pay for them as PPE.

Employment Handbooks, Policies and Best Practices

What policies might be affected or need to be revised due to the COVID-19 pandemic?

Employers might need to implement new measures to ensure the health and safety of employees. They might need to revise policies and practices to accommodate a new normal. Businesses should undertake a thorough analysis of existing policies in light of recent legislation. Some policies requiring revision might relate to:

• vacation/paid time off
• attendance
• work hours, including start/stop time, breaks, lunch times, flexible/staggered work hours
• time-keeping measures, including clock-in/clock-out procedures
• leave policies, including sick leave
• remote work
• travel policies(business and personal)
• information technology and usage

When employees return to work, may or should employers issue new policies and handbooks?

Employers who are not otherwise limited by a collective bargaining agreement may issue new policies or handbooks when returning employees to work. Indeed, it's a good opportunity to update everything in light of new legislation and best practices to minimize coronavirus transmission.

If employees have been on furlough, may they be called back to work, or must everyone be treated as a new hire?

In general, employees returning from furlough or temporary layoff needn't be rehired in the traditional sense. If employees stayed on the payroll, the business simply returns them to their prior positions. The business should document the return-to-work date via the usual personnel action form. If wages and benefits for returning employees have changed, they must be communicated in writing to the workers before they become effective.

What signage must businesses post in the workplace?

Employers are obligated to post numerous employment law-related posters in locations throughout their work sites. 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 requirements for expanded sick leave and expanded family leave. The requirement may be satisfied by emailing or mailing the notice to employees or posting it on the internal or external website.

Remote Work Considerations

What is involved if an an employer wants to continue the teleworking plan it devised during the stay-at-home order?

First, the business must assess its technological capabilities. Did it implement security and privacy protocols, or do they need to be added?

Second, the business must determine whether remote workers have the equipment required to do their jobs. Can the company ensure they will continue to have access to the proper equipment? Can it provide remote help-desk assistance on a long-term basis?

Third, how can the business effectively communicate with remote workers? Can they communicate with each other? How will time records be kept, and attendance tracked? How will overtime be monitored?

These considerations are especially important for nonexempt employees who must keep track of their time and attendance for wage-and-hour purposes.

How will productivity be measured?

Does the business need to reimburse employees for expenses? Does it require employees to use their own equipment? If so, it must reimburse them for expenses. For example, will the company pay a portion of an employee’s phone bill or internet charges?

Does the company have safety standards or practices for employees working remotely? Workers' compensation might be available for any injuries an employee suffers while working remotely. These issues are covered extensively in "Sullivan on Comp" Chapter 5, and addressed in this book's workers' compensation section, Injuries While Working at Home.

Businesses must draft a robust remote work policy or review its existing policy to determine if it needs updating. A remote work policy must accommodate the organization’s expectations of the workforce, and that might require separate policies for exempt and nonexempt employees.

When stay-at-home orders were enacted, businesses allowed remote work without a policy or procedure. Now that things have calmed down, should more formal remote work practices be implemented?

Yes. Each business keen to continue the remote work practice must develop a teleworking plan that addresses its needs after the crisis passes.

Return to Work and Leave Related to the Families First Coronavirus Relief Act and Family and Medical Leave Act

Does the Families First Coronavirus Relief Act still apply to rehired employees?

Yes. If a business recalls an employee any time before Dec. 31, 2020, and the worker claims to be 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, he or she is entitled to the monetary benefits. If an employee returns to work, then requires emergency paid sick leave or expanded family rights leave, he or she is eligible for these benefits until Dec. 31, 2020.

If an employer rehires an employee, must he or she work for 30 days before becoming eligible for expanded family/medical 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 on or before Dec. 31, 2020, the worker is entitled to expanded family/medical leave if he or she had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the layoff or termination.

If rehiring employees brings an employer's workforce to 500 or more, may employees still request sick leave or expanded family/medical leave?

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

If an employer hires a new employee as part of its return-to-work operations, and the worker used sick leave at the previous employer, is he or she entitled to another 80 hours of sick leave with the new company?

No. U.S. Department of Labor regulations specify that any person is limited to a total of 80 hours of sick leave. An employee who has taken some, but not all of those hours of sick leave, then changes employers, is entitled to the remaining hours from the new employer –– if the new employer is covered by the FFCRA.

If an operation was closed, and its employee requested pay for emergency sick leave, under the FFCRA may the business choose not to bring that worker back?

Although the employee was not qualified for FFCRA leave while the operation was closed, choosing not to bring an employee back based on his or her request for such leave could be viewed as discriminatory and retaliatory. The decision about who is invited to return to work should not be based on 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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