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COVID19: Updated Mask Guidance and Mayor Garcetti Loosens City of LA Paid Sick Leave Requirement

Wed Apr. 8th, 2020 PTWWW Legal Alert

Mask Guidance

Per recently issued CDC guidance, it is now recommended to wear cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies), especially in areas of significant community-based transmission. The CDC states that, “Cloth face coverings fashioned from household items or made at home from common materials at low cost can be used as an additional, voluntary public health measure.” However, the recommended face coverings are not surgical masks or N-95 respirators. Those are critical supplies that must continue to be reserved for healthcare workers and other medical first responders.

At this time, the Occupational Safety and Health Administration (“OSHA”) has not yet stated whether such face coverings are considered “personal protective equipment” (“PPE”) which would trigger certain obligations for employers. Nor has OSHA issued any guidance stating that cloth face coverings are recommended protections for employees. Thus, it is still not clear whether OSHA recommends face coverings for employees, or whether OSHA considers face coverings to be PPE.

Under OSHA rules that generally cover PPE in the workplace, before an employer can require an employee to wear PPE, the employer must, among other things,

  • Do a hazard assessment;
  • Consider alternative options to protect employees;
  • Identify and provide appropriate PPE for employees free of charge to the employees;
  • Train employees in the use of PPE;
  • Train employees how to maintain PPE; and
  • Prepare a plan for the use of PPE.
Until OSHA issues guidance on the issue, you should consider treating masks as PPE if you require your employees to wear them while at work. This would include paying for such masks. If you advise employees to wear masks at work as a voluntary measure to help reduce the spread of COVID-19, then at this time, you need not treat them as PPE.

Local Regulations

However, you must be aware of local regulations which may apply to your workers. For example, on Tuesday, Los Angeles Mayor Eric Garcetti announced an order requiring all residents to wear a face covering when visiting essential businesses. Additionally, effective Friday, workers at essential businesses must wear face coverings, which business owners must either provide or reimburse workers for buying. If a business refuses to provide face coverings for its workers, it could be subject to a fine. Starting Friday, businesses can deny service to customers not wearing face coverings.

Similarly, in Orange County, starting Wednesday, April 8, the city of Irvine will require workers at “essential” retail businesses to wear a bandana, scarf, fabric or other mask on the job, and Costa Mesa is working on similar rules for its grocery stores, restaurants and other businesses. Orange County Health Officer Dr. Nichole Quick is also expected to issue guidelines soon spelling out which workers should wear a mask or face covering, county supervisors were told at a Tuesday board meeting.

Not So Fast, L.A. City Council: Mayor Garcetti Loosens City of L.A. Requirements For Paid Leave Amid Coronavirus

Los Angeles Mayor Eric Garcetti announced last night that he was exempting a range of businesses from recently passed rules by the Los Angeles City Council mandating more paid leave for workers amid the COVID-19 pandemic. The Council voted last month to bolster paid leave for workers at big companies — those with 500 or more employees nationwide — requiring them to provide an additional 80 hours of leave. The move was intended to stop people who are especially vulnerable or suffering symptoms from continuing to go to work during the Coronavirus crisis.

Garcetti praised the council for moving swiftly to help Angelinos, but said that changes were needed to avoid putting some businesses at risk.

Garcetti said he was issuing an order that would instead impose the new requirements on businesses with 500 or more workers in Los Angeles alone — rather than across the whole country — or 2,000 or more employees nationwide.

In addition, Garcetti decided to exempt some employers that were already providing a significant amount of paid leave. Under the rules passed by the Council, big companies would have to provide 80 additional hours of leave for workers who are 65 or older, have medical conditions such as asthma or diabetes, have been advised to quarantine themselves, or need to care for a family member. Before the new rules passed, L.A. businesses were already required to allow workers to accrue and use up to 48 hours of paid leave annually. Garcetti says If businesses already provide their workers at least 160 hours of paid leave annually, they do not have to provide any additional leave, according to the mayor’s order.

See Order:

Stay Tuned

Congress is beginning to discuss their next legislative steps, including an interim bill and a second CARES Act. The interim bill, which could be considered as soon as Thursday, would address the new Paycheck Protection Program, which was the forgivable small-business loan program created by the first CARES Act. That legislation provided $350 billion for the program, but there is concern that it will quickly run out of money after reports of banks and the Small Business Administration being overwhelmed by applications.

If Congress manages to pass an interim bill in the next week, it will likely be a few weeks until a fourth COVID-19 bill is considered. Congressional members are not expected to return to Washington until April 20.

We will continue to keep you updated.