Return to Work Guidance

Stage 2 Guidelines for Reopening of Businesses

California Will Move into Stage 2 of Modifying the State’s Stay-at-Home Order Tomorrow, May 8, 2020

Stage 2 sectors include some retail, manufacturing, and logistics businesses with modifications such as curbside pickup. However, not all Stage 2 businesses will be able to open Friday with modifications. Some examples of businesses that can open with modifications include bookstores, clothing stores, florists and sporting goods stores. Other Stage 2 sectors, such as offices and dine-in restaurants, will be part of a later Stage 2 opening.

Note that the reopening process is expected to occur over a period of months.

Before any business reopens during Stage 2, 3 or 4, the business must:

1.   Perform a detailed risk assessment and implement a site-specific protection plan.
2.   Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have symptoms.
3.   Implement individual control measures and screenings.
4.   Implement disinfecting protocols.
5.   Implement physical distancing guidelines.

Below please find “guidance” and “checklists” generated by the state and posted today, May 7, 2020, regarding the reopening of businesses in various industries. The “guidance” provides guidelines to create a safer environment for works. It is suggested that you review the guidance, prepare a plan and post the “checklist” for your respective industry in your workplace to show customers and employees that you’ve reduced the risk and are open for business when authorized.

Agriculture and livestock

Auto-dealerships

Communications infrastructure

Construction

Delivery services

Energy and utilities

Food packing

Hotels and lodging

Life sciences

Logistics and Warehousing Facilities

Manufacturing

Mining and logging

Office Workspaces

Ports

Public Transit and Intercity Passenger Rail

Real estate transaction

Retail

New Orders Regarding Workers' Compensation and Property Taxes

Governor Newsom announced that workers who contract COVID-19 while on the job may be eligible to receive workers’ compensation. The Governor signed an executive order that creates a time-limited rebuttable presumption for accessing workers’ compensation benefits applicable to Californians who must work outside of their homes during the stay at home order.

Those eligible will have the rebuttable presumption if they tested positive for COVID-19 or were diagnosed with COVID-19 and confirmed by a positive test within 14 days of performing a labor or service at a place of work after the stay at home order was issued on March 19, 2020. The presumption will stay in place for 60 days after issuance of the executive order.

The Governor also signed an executive order that waives penalties for property taxes paid after April 10 for taxpayers who demonstrate they have experienced financial hardship due to the COVID-19 pandemic through May 6, 2021. This will apply to residential properties and small businesses. Additionally, the executive order will extend the deadline for certain businesses to file Business Personal Property Statements to May 31, 2020, to avoid penalties.

Items on Your Reopen "To Do" List:

Prepare to Implement and Enforce Policies to Maintain a Healthy Workforce

When your workplace is permitted to reopen, employers should continue to ensure that employees socially distance and have minimal contact with each other. Employers should create a protection plan for employees, communicate the plan, and enforce the plan on a regular basis.  Please contact us for assistance in developing your protection plan. 

For example, employers may wish to:

  • Stagger work hours and breaks;
  • Require the use of masks either all the time or while in common areas;
  • Create plexiglass barriers;
  • Enforce physical distancing at workstations, such as by rearranging desks and utilizing conference room space for workstations;
  • Eliminate in-person meetings and outside visitors;
  • Eliminate physical greetings (handshakes, hugs, etc.);
  • Limit outside visitors, and if possible, require outside visitors to wear masks and advise outside visitors not to enter if having COVID-19 symptoms;
  • Close or limit access to areas where employees might gather (kitchens, breakrooms, conference rooms);
  • Limit deliveries and provide guidance to those receiving deliveries;
  • Follow CDC guidelines for cleaning and disinfecting public places;
  • Remind employees about frequent hand-washing, covering coughs and sneezes and other practices as recommended by the CDC;
  • Increase breaks for the specific purpose of hand-washing;
  • Provide supplies for daily personal cleaning of personal devices;
  • Increase cleaning in common areas (kitchens, bathrooms, breakrooms, etc.) and of equipment (e.g. copiers, phones);
  • Limit shared food and beverages, including “community” containers of condiments and other supplies;
  • Require employees to use disposable dishes, cups and utensils, and to safely discard of these items;
  • Limit non-essential business travel.

Keep Updated on CDC Guidelines Regarding COVID-19 Prevention

Employers may be subject to claims for providing an unsafe workplace if they fail to take reasonably necessary actions to protect employees. To reduce risk, employers should do things such as:

  • Be apprised and educated about CDC guidelines regarding self-checking symptoms of COVID-19.
  • Communicate and enforce policies that employees with COVID-19 symptoms must stay home and that employees who show symptoms of COVID-19 may be sent home.
  • Follow CDC guidelines when determining when to allow a previously sick employee to return to work.

CDC guidelines are available here: https://www.cdc.gov/coronavirus/2019-ncov/community/reopen-guidance.html and https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.

Be Prepared to Address Fears and Concerns About Returning to Work

Although some employees may be eager to return to work, employers asking employees to return to work should also be prepared to experience hesitant employees who may raise health concerns about doing so.

The first step as with any health concern that employees may raise is to communicate.  Employers should listen to the employee’s concerns and be understanding.  Employers should assure employees that precautions are being taken, as outlined above, to prevent the spread of COVID-19 in the workplace.

If an employee continues to express concern, or indicates that he or she is a susceptible individual with respect to COVID-19, employers should be cautious when proceeding.  While employers usually can discipline employees for violating attendance policies, there are exceptions to this rule, such as if there is a medical need involved.  Putting hesitant employees on leave versus terminating them may mitigate risk.  Whether the leave is paid or unpaid depends on your company policies regarding leave.  Additionally, employers must be mindful of the following laws which may impact their decisions:

  • OSH Act: Employees can refuse to work if they reasonably believe they are in imminent danger. Employees must have a reasonable belief that there is a threat of death or serious physical harm likely to occur immediately or within a short period for this protection to apply.  Thus, an employee can refuse to come to work if the employee has a specific fear of infection that is not simply a generalized fear of contracting COVID-19 infection in the workplace (for example, the employee is a susceptible individual) and the employer cannot address the employee's specific fear in a manner designed to ensure a safe working environment.
  • ADA: Under the ADA, employers should accommodate employees who request altered worksite arrangements, remote work or time off from work due to underlying medical conditions that may put them at greater risk from COVID-19. The EEOC has indicated that employers should be flexible in providing accommodations to employees who have health concerns relating to COVID-19.  The EEOC explains, that, “As with any accommodation request, employers may: ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.”  The California DFEH has not yet issued guidance but is expected to conform its policies to the EEOC.  EEOC guidance is available here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
  • FFCRA: If an employee requests leave for a reason required under the Families First Coronavirus Response Act, the employee is entitled to paid leave. For example, employees who have been advised by a health care provider to self-quarantine may be eligible for paid sick leave under the FFCRA.

Generally, employers should treat employees who express concerns about returning to work due to underlying medical conditions or other conditions that make them susceptible to COVID-19 as a request for accommodation and should work with employees to engage in the interactive process as with any other request for accommodation.

Consider Legal Issues

Even when advised by government authorities that they can return to work, employees may have health concerns and/or family demands that could prevent them from returning to work. COVID-19 also creates additional legal risks in the workplace when employees do return to work. In order to mitigate risk, employers should:

  • Communicate to employees that they will not be retaliated against for seeking information about their rights with respect to safety and/or accommodation of any disability or medical condition.
  • Engage in the interactive process with employees who are unable to return to work due to medical or childcare issues.
  • Review the EEOC’s recently issued guidance about accommodations that employers may need to provide if an employee is at higher risk of serious illness due to COVID-19. That guidance is available here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
  • Familiarize yourself with state or local ordinances which set forth the process for selecting which employees may return to work first. For example, the Los Angeles City Council has passed Right of Recall and Worker Retention ordinances, which are expected to be signed by Mayor Garcetti soon. These require certain employers in the hospitality, property management and airport industries to re-hire based on seniority.
  • Be open to flexible schedules, teleworking, and intermittent leave for employees who can still work from home.
  • Ensure that you are providing leave under the Families First Coronavirus Response Act and any state or local ordinances providing for additional paid sick leave relating to COVID-19, and moreover, that you are adhering to the posting of notices required under the law.
  • Ensure that employees who fail to adhere to your return to work and safety policies are dealt with in a non-discriminatory manner.
  • Protect employees’ medical privacy rights when confronted with an employee who has COVID-19 or symptoms of COVID-19.
  • Engage in the interactive process when employees seek assistance or accommodation with their own physical, emotional or mental condition or the condition of a family member.
  • Document changes in employment terms and ensure that changes in hours and/or pay do not require the reclassification of employees from exempt to non-exempt.
  • If sending employees home for COVID-19 symptoms, ensure that reporting time is paid as required by California law.
  • If requiring employees to wear masks in the workplace, employers must pay for the cost of masks.
  • If temperature checks are instituted at your workplace, employers must pay employees for their time to undergo temperature checks.
  • Be aware of the new rebuttable presumption that an employee contracting COVID-19 is a workplace injury for purposes of workers’ compensation claims. Governor Newsom has signed an executive order that creates a time-limited rebuttable presumption of workplace injury for purposes of workers’ compensation if an employee tested positive for COVID-19 or was diagnosed with COVID-19 and confirmed by a positive test within 14 days of performing a labor or service at a place of work after the stay at home order was issued on March 19, 2020.  The presumption will stay in place for 60 days after issuance of the executive order, which was signed on May 6, 2020.  The order is available here: https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf.

Employers' EEO-1 Reporting Process Delayed by a Year

Employers across the country got a reprieve from the federal government when they announced that the EEO-1 reporting process would be delayed by a year. Employers' next reporting deadline has been pushed to March 2021. Employers are now temporarily spared from having to submit the annual EEO-1 report which requires businesses to report employment data related to race, ethnicity, gender, and job category. Specifically, your 2019 EEO-1 reports, which were due by March 31, 2020 (but could not submitted because the portal was not available) are now officially postponed.

ERICA M. SOROSKY
[email protected]
(949) 851-7271
ERIN K. OYAMA
[email protected]
(949) 851-7288