Considerations for Taking Employee Temperatures; More to Keep in Mind For Preparing to Reopen; New I-9 Handbook and Form for May 1

Taking Temperatures in the Workplace:  Employers Can Do It, But Is There Risk?

Like anything else with California labor and employment law, there are things employers must pay attention to in order to avoid potential liability:

• What is considered a fever? According to the CDC, a fever is more than 100.4 degrees Fahrenheit.  Therefore, the CDC recommends screening employees for fevers of more than 100.4 degrees Fahrenheit.  Note that states may have different thresholds for what constitutes a fever so it is important to be mindful of state guidelines.  If you decide to screen your employees, also plan to check the temperatures of people coming into the business establishment such as guests, clients, vendors, etc. to provide for a safe and healthy environment for everyone at the workplace.
• Do employees taking temperatures need to be trained or wear PPE (personal protective equipment)? The employee administering temperature screenings should be specially trained and wear PPE if the employee is to be within six feet of any individual who may have the virus.  OSHA recommends that they wear PPE consisting of some combination of gloves, a gown, a face mask, and/or a face shield or goggles.The employee taking temperatures should also be trained on the required PPE under OSHA’s PPE standard.  The employer should also conduct a job hazard assessment and PPE certification related to the screening.  To the extent that screeners may also be exposed to bloodborne pathogens (BBP), such as mucous or saliva, you should ensure they are properly trained under OSHA’s BBP standard – which requires employers to prepare an exposure control plan.Keep in mind that, where not required by a local or state order, the CDC allows employers to screen employees for COVID-19 symptoms, including a fever, without ever touching or interacting with them.  You can do so by standing more than six feet away and asking the employee to confirm they don’t have a temperature and making a visual inspection of the employee (e.g., looking for flushed cheeks or fatigue).  Only under this method could the employee screener not be required to wear PPE.Employees waiting to have their temperatures screened should wait in line six feet or more from each other.
• Are there wage and hour issues to consider? Waiting in line and undergoing a temperature screening is compensable work time for an employee.
• Are there privacy issues that an employer needs to consider? The Equal Employment Opportunity Commission (EEOC) has cautioned thatemployers can ask employees if they are experiencing symptoms of COVID-19, including taking their temperatures, provided that all biomedical information is maintained as a confidential medical record, and separate from the employee’s personnel file.  Some states, such as California, require employers to provide a notice to all employees prior to screening them for biomedical data.  An instantaneous read on a thermometer that is conveyed to the employee whose temperature is being taken in real time may be sufficient to work around the confidential medical record storage requirement (unless a government order dictates otherwise).

Business Reopening “To Do” List

Gov. Newsom Announces Second Phase of Reopening Parts of California to Start as Early as Friday

Gov. Gavin Newsom said he will announce on Thursday plans for California to move closer to reopening parts of the state. The governor said during his daily press conference today that the next stage of reopening the state’s economy is expected to begin as early as Friday.

Some businesses included in Newsom’s “Stage 2” of reopening will allow for curbside pick-up at businesses such as book stores, clothing stores, sporting goods, toy stores and florists, given they follow additional safety protocols that will be released Thursday, Newsom said. The state is also working to create guidelines that will allow restaurants and other hospitality businesses to open their doors again.

However, Newsom said the next phase does not currently include the reopening of offices, seated dining in restaurants or shopping at malls.

Stage 2: Reopening lower risk workplaces, including:

• Non-essential manufacturing (toys, furniture, clothing, etc.)
• Schools
• Childcare facilities
• Retail businesses for curbside pick-up
• Offices where working remotely isn’t possible, but can be modified to make the environment safer for employees

Health and Safety

To avoid potential liability, employers should be following the CDC’s Interim Guidance for Businesses, including best practices for social distancing, Guidelines for Cleaning and Disinfecting the workplace, and quarantining employees who have an exposure to a confirmed COVID-19 case, found at the CDC’s Public Health Recommendations for Community Exposure. Employers should ensure that employees are provided and properly wearing all required PPE.

Leases, Agreements, and Practical Considerations

The following are some situations that businesses may want to consider with respect to leases, loan agreements and other matters:

• Operational restrictions. Many leases contain restrictions on a tenant’s operations that could impact things like employee and visitor access, testing, and/or social distancing and how they are to be accomplished.  For example, there could be restrictions on operations that are not workable given social distancing requirements.  Also there could be co-tenancy requirements in commercial centers that may not be viable in light of the current situation.
• Common area amenities. Retail and office leases may have common area operations that are no longer viable such as meeting rooms, gyms, communal lunch areas, valet parking, etc.
• Indemnification and insurance issues. These provisions should be reviewed to ensure that changes in operations do not shift or expand liabilities in an unanticipated way.  For example, does an office landlord take on additional potential liability by screening visitors in the building lobby? Could a party be required to obtain insurance against pandemic-related consequences even if the coverage cannot be obtained at commercially reasonable rates?
• Approval of reconfiguration to comport with social distancing. As tenants propose reconfiguring or altering their spaces to deal with social distancing and related concerns, landlord and lender approval rights over such actions should be reviewed.
• Compliance with laws. Leases and loan documents typically require borrowers to comply with applicable laws.  These would include compliance with government-mandated notices and social-distancing requirements.
• Opportunities to lower overhead. Parties should look for opportunities to cut costs.  For example, if parking use is reduced because employees are working in shifts, there may be an opportunity to save money by “giving back” optional parking rights.  Or if tenants pay for gym memberships or other amenities like valet parking these things can be re-evaluated.

Changes in the I-9 Handbook

On April 27, 2020, the US Citizen and Immigration Services released an updated version of the Handbook for Employers – Guidance for Completing Form I-9. The update of the I-9 handbook was timely because on May 1, 2020, employers are required to use the latest revision of Form I-9.

Starting May 1, 2020, employers are required to use new edition Form I-9, Employment Eligibility Verification, with the 10/21/2019 edition date.  A revised Spanish edition of Form I-9 with an edition date of 10/21/2019 is available for use in Puerto Rico only.  For more information, visit I-9 Central.

ERICA M. SOROSKY esorosky@ptwww.com (949) 851-7271	ERIN K. OYAMA eoyama@ptwww.com (949) 851-7288