Dear Clients and Friends:
Welcome to Friday Five, where we share the Top Five Things You Need to Know This Week to protect your work community and help it thrive. We include recent developments in the law, or questions that we find ourselves answering a lot! As always, please reach out with any questions, we are here for you. And if you are curious about our prior Friday Five or other newsletters, you will find that here.
(1) San Diego County Adds Face Mask Requirements.
The County of San Diego issued new orders effective May 1, 2020. Of primary importance are the new face mask requirements. Here is a link to the Order itself. Here are the key points (with the newest key requirements bolded) for your business (we've added emphasis for the mandatory bits):
- All essential businesses that allow members of the public to enter a facility must prepare and post a "Social Distancing and Sanitation Protocol." Here is a link to the protocol.
- All employees who may have contact with the public, in any restaurant or other essential business that serves food, grocery store, pharmacy/drug store, convenience store or gas station shall wear a cloth face covering as described in the California Department of Public Health Face Covering Guidance referenced in the Order.
- All employees who work in banks or public transportation who may have contact with the public shall wear a cloth face covering.
- All essential businesses that remain in operation in accordance with the Order shall enact social distancing, increased sanitation standards, and shall make every effort to use telecommuting for their workforces.
- All persons two years old or older who are present in the county shall have possession of a face covering when they leave their residence and shall wear the face covering whenever they are in a business or within six feet of another person who is not a member of their family or household. Persons with a medical or mental health condition or a developmental disability that prevents wearing a face covering are exempt from this requirement.
- Effective 12:00 a.m. on Friday, May 8, 2020, each essential business shall require all employees to wear a face covering in compliance with the provision above.
Broadly read, the last bullet above (which is taken directly from the order) suggests that a face mask is required for any employee working in an essential business at all times, whether they are 6 feet apart or not! Indeed, that appears to be the County's intention. Here is a link to the San Diego County interpretation of the order, which includes that businesses must
- Require their employees, contractors, owners, and volunteers to wear a face covering at the workplace and when performing work off-site.
- Inform customers about the need to wear a face covering, including posting signs and advising those in line or in the store. Here is a link to suggested postings in English and in Spanish.
- Refuse service to anyone not wearing a face covering.
(2) How to Respond to an Employee's Positive COVID-19 Test.
When an employee alerts you to a positive test, there is much to consider in protecting the health and safety of that employee and of everyone with whom that individual may have come in contact.
Responding to the Employee:
- Recognize how scary this diagnosis may be for the employee, so first and foremost, be kind.
- Perhaps obvious, this employee should not work until it is safe to do so. Educate the employee on the benefits that are available, in the form of time off, which could include Emergency Paid Sick Leave and/or Medical Leave under your policies or (if you/the employee are covered) the Family and Medical Leave Act/California Family Rights Act and/or the Americans With Disabilities Act/Fair Employment and Housing Act (as a reasonable accommodation for a certified disability).
- The employee should complete your Request for Emergency Time Off forms, and you should provide the employee with a written summary of entitlements and implications of the time off. These forms can be complicated, and must be comprehensive. Please let us know if we can help you communicate clearly and legally with your employees.
- Ask the employee to identify as many employees, customers, vendors or third parties with whom the employee has interacted in the past 14 days, with as much specificity as possible. In this process, you will want to alert the employee to your notice protocols, letting the employee know that you will do your best to protect the employee's privacy, but that you are required to alert exposed individuals to the exposure. Consider asking the employee for permission (entirely voluntary) to share the individual's identity. We can help you create a protocol for this.
- Ask the employee to identify where the employee has been within your worksite in the preceding two weeks. Also, what protocols has the individual been following? Has he/she been wearing a mask? Washing hands regularly? Social distancing? All of this will be helpful in communicating the news, as described more below.
- Share the conditions for the employee's return to work. The CDC guidance is very helpful on creating a protocol and policy on this. No doubt this employee will be concerned about job protection during this leave, so understand what protection you can (or must) offer and communicate that.
Alerting Directly Impacted Employees or Third Parties:
- Once you know the identity, alert all individuals who had immediate contact with the employee who has tested positive.
- Share that an individual has tested positive, but unless you have the employee's permission, you may not share the identify of the employee. To the extent the original employee has shared additional information about where the employee has been in the worksite, you can generally share this along with any comforting information you gleaned about the employee's mindful behavior in the two weeks preceding the diagnosis.
- For employees who had direct contact with this individual, you may want to offer or even require that these individuals stay away from your workplace. Critical infrastructure employees may be permitted to continue to work, provided they remain asymptomatic and additional precautions are implemented.
- You may want to implement testing protocols for individuals with immediate contact, like taking temperatures before they enter the worksite or COVID-19 testing.
Steps to Protect Other Employees and Meet Your Obligations:
- Now that you are aware of the COVID-19 diagnosis, you must document it according to OSHA's recordkeeping mandates.
- Immediately perform enhanced santitation and cleaning protocols.
- Consider whether you need other enhanced protocols, like additional protective equipment.
- Consider training your workers (again) on safety practices and protocols.
- Alert the broader work force of the diagnosis. Again, no names should be given. You will share the steps you have taken in response and remind employees of the protocols you have in place. Included in this is reminding employees of symptoms, and of their obligation to notify the Company in the event any symptoms are discovered.
- You should anticipate that employees may press you on the identity (kindly resist!) and may ask for time off in response. Be clear as to the time off that may be (or is not) available. Be prepared with this information before you speak with any employees about next steps.
(3) Are You Keeping An Eye on Local Ordinances? San Francisco and San Jose have Expanded Paid Sick Leave Benefits.
Both San Francisco's and San Jose's ordinances expand the sick leave benefits otherwise available under the Families First Coronavirus Response Act ("FFCRA"). As we shared in our recent Friday Five, Los Angeles recently passed a similar ordinance.
For San Francisco, key elements include:
- Businesses with 500 or more employees are required to provide an additional two weeks of paid sick leave for employees to use during the COVID-19 public health emergency. The emergency sick leave (ESL) is available immediately and will expire on the sooner of June 17, 2020, or when the public health emergency ends.
- To the extent feasible, the amount of ESL available to an employee should be listed on that employee's paystub. If that is not feasible, a separate writing must be given to each employee each pay period with this information.
- ESL is available for immediate use and may be taken "regardless of whether and when the Employee is scheduled to work," up to the average number of the employee's scheduled weekly hours.
- ESL is in addition to the employer's existing paid leave policies, but an employers' obligation under this ordinance is reduced by every hour an employee was allowed to take paid leave consistent with the ordinance on or after February 25.
- Employers cannot require that ESL be taken in increments of more than one hour, cannot require a doctor's note, cannot reduce their paid time off policies on or after the effective date of the ordinance, and cannot require that employees find replacement workers to cover their leave.
- Employers of healthcare providers and emergency responders must allow those employees to use ESL (even though ordinarily an employer may exclude these workers) where the employee is advised by a healthcare provider to self-quarantine, or has COVID-19 symptoms, is seeking a diagnosis, and does not meet CDC guidance to return to work.
- For sick leave granted for purposes of caring for another person, San Francisco limits ESL to an employee's caring for family members, but expands care to a family member (not necessarily a child) whose caregiver becomes unavailable due to the public health emergency.
The San Jose Ordinance provides, in key part:
- The ordinance is effective from April 7, 2020, through December 31, 2020.
- The ordinance applies to all businesses that are not required – in whole or in part – to provide paid sick leave benefits under the FFCRA. In other words, this ordinance applies not only to employers with 500 or more employees, but also to employers with fewer than 50 employees and employers of healthcare providers or emergency responders who are excluded from, or can opt out of, the FFCRA.
- Leave is available to employees who leave their residence to perform essential work and have worked at least two hours in the City of San Jose.
- Employers that as of April 7 otherwise provide employees with vacation, sick leave or PTO "at least equivalent" to the provisions of the ordinance are exempt. Employers must supplement the paid time off of any employee who had less than the required amount available to be used as of that date, up to the amount required.
Keep a close eye on the orders and ordinances in the cities and counties in which you have employees or do business! And reach out to us for the latest news.
(4) A New Poster Is Required for Agriculture and Food Workers.
The California Labor Commissioner has issued a poster on Supplemental Paid Sick Leave for Food Sector Workers, which must be displayed where workers can easily read it. Here is a link to the poster.
As a reminder, the California Governor has ordered employers with 500 or more employees to provide supplemental paid sick leave to food sector workers for specified reasons related to COVID-19 (the worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19, the worker is advised by a health care provider to self-quarantine or self-isolate due to COVID-19 related concerns, or the worker is prohibited from working by the worker's hiring entity due to health concerns to the potential transmission of COVID-19).
A "food sector worker,"
- Performs work in a certain food-related industry or in the retail food supply chain, including pick-up, delivery, warehousing, packaging, retail, or preparation;
- Performs work outside the worker's home; and
- Is exempt as critical infrastructure workers from any statewide stay-at-home order
Examples of covered workers include farm workers, grocery store workers, food pick-up and food delivery workers.
(5) A Clarification on the Small Business Exemption.
We have received questions on the scope of the FFCRA's small business exemption, and how to determine whether it applies.
A small employer (fewer than 50 employees) is exempt from the requirement to provide Emergency Family and Medical Leave ("EFML") or Emergency Paid Sick Leave ("EPSL") taken for the purpose of caring for his or her son or daughter whose school or place of care has been closed or whose child care provider is unavailable due to COVID-19 related reasons. With respect to EPSL, the small business exemption only is available with respect to EPSL taken for that particular reason.
Here is a link to our prior summary for the details of when the exemption is available. Please contact us with any questions on how to document your eligibility for the small business exemption.
We Are Here For You
We hope this information is helpful as you navigate the recent developments. Please stay tuned, we will continue keeping you updated. Please stay in touch. You are in our thoughts constantly. And please, reach out if you have questions or just want to talk! As always, we are sending you wishes of health, gratitude and well-being.
As always, we are sending you wishes of health, gratitude and well-being.