Karina B. Sterman

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Reopen with Care: Employers Should Proceed Cautiously in Resuming Workplace Operations

June 3, 2020Client Alert

Non-Essential Businesses Continue to Reopen Under State and Local Safety Orders, but Employers Should Still Use Caution

California continues to advance through the later portion of Stage 2 of its phased reopening plan. However, not all California cities and counties are opening at the same rate.

Instead of a one-size-fits-all approach, the California order permits individual cities and counties to set their own rules for reopening and request variances from the State in order to move further into the reopening process. In doing so, each county must demonstrate that it has met the readiness criteria established by State officials, which include:

  • Stability of hospitalizations
  • Personal protective equipment inventory
  • Health care surge capacity
  • Testing capacity
  • Contact tracing capability
  • Public health guidance in place

As the State’s most populous county with the largest number of infections and roughly half of the State’s deaths related to COVID-19, Los Angeles has had a harder time satisfying these various State metrics. While retail stores, barbershops, and restaurants opened for in-person patronage earlier this month in counties such as Ventura, San Diego and Orange County, Los Angeles trailed behind.

However, on Tuesday, May 26th, Los Angeles County loosened restrictions related to retail establishments, shopping centers, and faith-based organizations, among others. Just a few days later, on May 29th, Los Angeles allowed for the re-opening of barbershops and hair salons.

The Los Angeles County Order applies to all incorporated and unincorporated cities in Los Angeles County except for Long Beach and Pasadena. The county order adopts detailed re-opening protocols which must be posted and followed at the following establishments (click on industry links below to access protocols):

Under the county protocol, retail and mall establishments may only open at 50% capacity, while dine-in restaurants may only open at 60% capacity. Attendance at religious services and cultural ceremonies at a house of worship is limited to a maximum of 25% of building capacity or 100 individuals, whichever is lower.

At a minimum, all businesses are required to post the applicable protocol in their facility, ensure social distancing to the fullest extent possible, and train employees to self-monitor for symptoms and exercise robust hygiene practices. Specific hygiene and cleaning practices are further described in the protocol for each sector.

The city order, entitled “Public Order Under City of Los Angeles Emergency Authority,” is largely in line with the county order and adopts and requires businesses to post the various county safety protocols discussed above.

The Centers for Disease Control and Prevention (“CDC”) have also published a Resuming Business Toolkit that employers may find helpful. However, if State or local orders are more strict than CDC guidelines, then the more restrictive guidelines should be followed.

While employers and employees are eager to return to work, employers should take special note that even as some restrictions are lifted, both the city and county orders make clear that all persons who can continue to work from home should do so whenever possible. The re-opening of businesses is far from a return to “normal.” Over this past weekend, Los Angeles County reported its largest one-day total of COVID-19 cases since the start of the pandemic, and if mortality rates increase to such an extent that the county can no longer satisfy the six “readiness criteria” discussed above, the State and County may re-instate the restrictions which are currently being lifted.

California and the Department of Labor Issue OSHA Workplace Safety Guidelines and Guideline Updates to Specifically Address COVID-19

In addition to the State and local orders, employers who are reopening for business must comply with new COVID-19 guidelines issued by the California Department of Industrial Relations (“DIR”) and The Division of Occupational Safety and Health (DOSH), better known as Cal/OSHA.

The DIR notes that the Interim General Guidelines on Protecting Workers from COVID-19 are subject to change as the situation evolves. The DIR further explains: “This interim guidance does not impose new legal obligations. It provides employers and workers with information for preventing exposure to the coronavirus (SARS-CoV-2), the virus that causes COVID-19.” The DIR further notes that “COVID-19 precautions that may be required by these standards are applicable to most workplaces in California, particularly those with significant public interaction such as retail establishments and service industries….”

The DIR recommends that all employers determine if COVID-19 infection is a hazard in their workplace. If so, then employers must update their Injury and Illness Prevention Programs (“IIPP’s”) to implement infection control measures. IIPP’s should include applicable and relevant recommendations from the Centers for Disease Control and Prevention (CDC), Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), and Coronavirus Disease 2019 (COVID-19): How to Protect Yourself & Others.

Employers should consult the General Guidelines for a complete list of infection prevention measures to be included in their written IIPP. (For those who previously reviewed our Return-to-Work Checklist for Employers, OSHA’s guidelines will look very familiar.)

The General Guidelines also provide recommendations regarding provision of employee training, washing facilities, and personal protective equipment (“PPE”).

For employers who do not yet have a written IIPP, the DIR provides a model IIPP e-tool. By answering a set of questions, an employer can create an IIPP specific to its workplace.

Employers must also comply with federal Occupational Safety and Health Administration (“OSHA”) rules, for which the Department of Labor issued an Updated Interim Enforcement Response Plan last week. OSHA states the update to the Enforcement Response Plan (“ERP”) was required because “[a]s more states are taking steps to reopen their economies and workers are returning to their workplaces, OSHA is receiving complaints from affected workers in non-essential businesses. This Updated Interim Enforcement Response Plan takes account of such changes.” OSHA confirmed it will continue to prioritize COVID-19 workplace occurrences, particularly in the healthcare fields.

Employers can also review the attachments to the updated ERP in the links below:

  • enforcement procedures (Attachment 1);
  • sample employer letter for COVID-19 activities (Attachment 2);
  • sample hazard alert letter (Attachment 3); and
  • additional references, including OSHA’s prior COVID-19-related enforcement memoranda (Attachment 5).

California Creates a Temporary Rebuttable Presumption that Certain Workers Diagnosed with COVID-19 Are Entitled to Workers’ Compensation Benefits

At the same time that California Governor Gavin Newsom announced that many California businesses may reopen for business, he created disincentive for doing so. Specifically, Governor Newsom issued an Executive Order on May 6, 2020, stating that employees who contract COVID-19 during the same time period that they are working outside their homes may be eligible to receive worker’s compensation coverage for that illness.

The Executive Order has created a temporary rebuttable presumption that an employee who has worked outside the home at any time as of March 19, 2020, (the start of the Stay at Home Order) and has tested positive for COVID-19 within 14 days of the last time the employee worked outside the home must have contracted the illness in the workplace. This presumption of workers’ compensation coverage applies to all employees, regardless of whether the employer is an essential business, and will remain in place until July 5, 2020, (60 days from May 6) unless it is extended.

While the presumption of worker’s compensation coverage is rebuttable, there is no guidance in the Executive Order as to how it may be rebutted other than by presentation of “other evidence.” However, the Executive Order also made clear that the employee claim of workers’ compensation coverage must be accepted or rejected within 30 days, which is an expedited basis compared to other workplace injury claims.

Key Takeaways

  • As discussed above, Los Angeles orders require employees who can perform their duties from home to continue to telecommute. Based on this Executive Order, employers outside of Los Angeles should also re-evaluate whether employees have to return to the workplace as opposed to continue to telework until the Executive Order presumption expires.
  • If you need employees to come into the workplace, keep records that may create a basis to rebut the presumption that the employee was infected at work. For example:
    • create staggered schedules and physical distancing;
    • log all cleaning and disinfecting of the workplace; and
    • log employee reports of infected family members and close associates with dates of diagnoses;
    • have a robust COVID safety policy in your written Illness and Injury Prevention Program, as discussed above.

Communicate with your worker’s compensation insurance broker to find out how your carrier is responding to the Executive Order and what changes, if any, it expects from you as an employer.

Long Beach Joins Los Angeles in Passing Mandatory Right of Recall and Worker Retention Ordinances

On May 16, 2020, the city of Long Beach enacted a Right of Recall Ordinance (“Recall Ordinance”) and Worker Retention Ordinance (“Retention Ordinance”), which largely mirror the City of Los Angeles’ ordinances (although the pool of covered employees is smaller under the Long Beach rules).

Under the Recall Ordinance, commercial property employers that provide janitorial services and employ more than 25 employees, and hotel employers that employ 25 or more employees (together, “Covered Employers”) must follow a specific process to rehire workers who have been furloughed or laid off due to “a lack of business, a reduction in work force, bankruptcy, or other economic, non-disciplinary reason.” Covered Employers cannot rely solely on their discretion in determining the order in which to re-hire people.

The Worker Retention Ordinance requires that in the event of a change in control or change in ownership of a Covered Employer, those who were employed with the incumbent employer on or after March 4, 2020, must be placed on a “preferential hiring list” (“PHL”). The new entity that takes control or ownership must hire personnel from the PHL for at least six months. It must also retain these personnel for no less than 90 days and conduct performance evaluations. An employee rehired under this section cannot be fired without cause during the 90-day period.

These ordinances do not apply to all employees of the Covered Employers. Managers, supervisors and confidential employees are not covered. Furthermore, an individual will not be eligible unless they are an active employee of the identified business (including time when the employee was on leave or vacation). Finally, the individual must also meet all of the following criteria:

  • they perform at least two hours of work within the geographical boundaries of the City for the employer in a particular week;
  • they have been employed with the employer for at least six months or more, and
  • their most recent separation from active employment by the employer occurred on or after March 4, 2020, as a result of a lack of business, a reduction in work force, bankruptcy or other economic, non-disciplinary reason.

Federal EEO-1 Filing Deadline Delayed and Extended Due to COVID-19

Recognizing the impact that the COVID-19 pandemic is having on workplaces across the country, the federal Equal Employment Opportunity Commission (EEOC) has delayed 2019 EEO-1 Component 1 data collection. Currently, the EEOC anticipates collecting Component 1 data for both 2019 and 2020 in March 2021.

Private employers are required to file EEO-1 Reports if they are subject to Title VII of the Civil Rights Act of 1964 with 100 or more employees (either individually or inclusive with corporate parents and affiliates). Certain federal government contractors are also required to file the EEO-1 Reports. As part of the Component 1 data collection, covered employers must report race, ethnicity, and sex data of its employees, by job category.

The EEOC’s press release announcing this delay states that it is subject to the approval from the Office of Management and Budget (OMB). Once a new collection date is determined, the EEOC will notify all eligible EEO-1, EEO-3, and EEO-5 filers.

The EEOC has not addressed collection of 2019 Component 2 data, for which employers must report their workers’ W-2 earnings and hours worked in addition to the Component 1 data. Collection of Component 2 data has been the subject of litigation, and although the EEOC has completed the collection of 2017 and 2018 pay data, the EEOC announced in September 2019 that it would not renew its request to collect Component 2 data.

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We encourage you to visit Greenberg Glusker’s Coronavirus Resource Center and to contact us with any questions.