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Friday Five: What You Need to Know This Week
About Covid-19 - May 8, 2020


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) California is Allowing Certain Businesses to Reopen, and San Diego County has Adopted a Business Safety Framework for Those Businesses.

California has released a Resilience Roadmap for modifying the state's stay at home orders beginning May 8, 2020. Under that Roadmap, certain businesses (retail and manufacturing businesses with curbside pick-up, including book stores, jewelry stores, toy stores, clothing stores, shoe stores, home and furnishing stores, sporting goods stores, antique stores, music stores and florists) will be allowed to reopen. Supply chains supporting the above businesses, in the manufacting and logistical sectors, also may reopen.

Before reopening, all facilities must:

  • Perform a detailed risk assessment and implement a site-specific protection plan

  • Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they experience them

  • Implement individual control measures and screenings

  • Implement disinfecting protocols

  • Implement physical distancing guidelines

In response to California's action, San Diego has issued a new order, effective May 8, 2020. Per the new order, affected businesses (including essential businesses (as defined) and those opening under the Resilience Roadmap):

  • Must complete the County's Safe Reopening Plan, print and post it at their entrance where it is easily viewable by the public and employees. A copy of the Safe Reopening Plan also must be provided to each employee performing work at the facility.

    These businesses should review and refer to the state checklist for their specific industry, such as the Retailer guidance and checklist, when completing the County's Safe Reopening Plan.

  • Must require all employees to wear face coverings whenever they are in a business or within six feet of another person who is not a member of their family or household.

  • Must conduct temperature screening of all employees, and prohibit employees with a temperature of 100 degrees or more from entering the workplace.

    Symptom screening (prohibiting employees from entering if they have a cough, shortness of breath or trouble breathing or at least two of the following: fever, chills, repeated shaking with chills, muscle pain, headache, sore throat or new loss of taste or smell) may be used only when a thermometer is not available.

Here is a link to the May 8 order.

(2) Protect Yourself From an Increase in Workers' Compensation Claims.

On May 6, 2020, Governor Newsom issued an order that workers' compensation benefits are available for diagnosed workers who work outside their homes. Per the order, in the event of a positive diagnosis for COVID-19 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, there will be a presumption that the worker contracted the virus at work. Employers will have an opportunity to rebut the presumption. The presumption will stay in place for 60 days after issuance of the executive order. Here is a link to the order.

While the order does not provide any guidance to employers on how to successfully rebut the presumption, the best defense to a claim is having a comprehensive wrap-around program in place for protecting employees that includes safety protocols, notices to employees, and clear guidance on steps to minimize exposure. Please let us know if you would like help creating a program, and we have included some ideas below in this Friday Five.

(3) Prepare Your Work Community for Employees Who Are Rolling Off EPSL or Coming Back to Work

California is beginning to relax the stay at home rules. At the same time, employees are exhausting their Emergency Paid Sick Leave and contemplating coming back to work. Or maybe all that teleworking is creating a hardship for your essential business. What should you be doing in preparation for employees coming back to work? Here are a few recommendations:

  • Provide Notice to Employees Before They Return. Employees should be provided with written notice of their need to return to work. This notice should include reminders of the safety protocols and expectations on re-entry, including any testing or COVID-related questions they will need to answer (more on this in #4 below). They also should be provided with information about the steps you are taking to maintain a safe workplace during the pandemic.

  • Create a Safety Plan. Develop a plan to have in place before employees return, including expectations for them to notify you of COVID-related issues, daily requirements related to hand-washing, social distancing, cleaning and disinfecting procedures, staggered schedules or other safety protocols. The plan aslo should include details about how you will respond to COVID-related incidents as they arise, including sending employees home or other practices.

  • Are You Considering Screening or Testing? If you plan to implement medical screening before employees enter the worksite, such as temperate checks, follow all privacy rules (for example, keep any documentation in confidential medical files). Also, you will need to evaluate the wage and hour implications for doing that, including the requirement that employees record and be compensated for time spent on the testing.

  • Revisit Protective Personal Equipment, such as masks and supplies, your safety protocols, and have a sufficient quantity of PPE/hand-sanitizer/cleaning products in advance. Let us know if you have questions about your obligations to provide PPE or other safety related equipment.

  • Posters. Double check that you have all required federal, state and local posters displayed. If you would like to double check your list, let us know.

  • Additional Leave? Depending on the reason for the absence, an employee might be eligible for additional leave entitlements. For example, if an employee tells you that he or she cannot work for a COVID-related reason, that could trigger a duty to provide supplemental paid sick leave beyond what you have offered under federal leave, under a patchwork of local ordinances developing (like Los Angeles), or under the various laws that provide medical, disability or family leave.

  • Scared or Reluctant Employees. Some employees won't want to come back, even with Governor Newsom's new order or their exhaustion of leave, even where they aren't legally entitled to additional leave, so be prepared in advance with your response.

  • Retaliation is Prohibited, and Documentation is Key. Remember, the law prohibits retaliation against individuals who requested and/or took protected leave under the Families First Coronavirus Response Act ("FFCRA") or other paid sick leave laws. Be careful in making decisions about who returns to work and the position to which you return them, and document the underlying business reasons.

(4) And How About Adding an Additional Safety Protocol?

Of critical importance in light of the above changes on workers compensation benefits is an employer's ability to defend itself on its safety protocols. In addition to those you've considered to date, have you thought about having employees attest in writing to certain conditions on a daily basis? For example, whether they have a temperature or any other COVID-19 symptoms, whether they've been exposed to anyone with COVID-19, or whether they've traveled to a country that is on the CDC's travel health notice list. And on that topic, what about employees who travel to a foreign country? Governor Newsom's order requires that employees who travel to countries on the CDC's travel list quarantine themselves for 14 days, so that may be employee information you would like to have.

(5) The EEOC Has Issued Additional Guidance on Employees Returning to Work

On May 5, 2020, the Equal Employment Opportunity Commission ("EEOC") added to its guidance on What You Should Know About COVID-19 and the Americans With Disabilities Act ("ADA"). Specifically, the EEOC posed and answered three questions.

  • What does an employee need to do in order to request reasonable accommodation from her employer because she has one of the medical conditions that CDC says may put her at higher risk for severe illness from COVID-19?

    An employee (or his/her doctor) needs to request the accommodation either verbally or in writing. After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.

  • How does the ADA when an employer is concerned that the health of an employee with a "higher risk for severe illness" will be jeopardized upon returning to the workplace, but the employee has not requested accommodation?

    First, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action. If the employer is concerned about the employee's health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that places him/her at "higher risk for severe illness." No such action is allowed unless the employee's disability poses a "direct threat" to his/her health that cannot be eliminated or reduced by reasonable accommodation. "Direct threat" is a high standard: that the individual's disability poses a "significant risk of substantial harm" to his own health. A number of factors need to be considered. We are happy to provide more detail on these factors.

    Even if an employer determines that an employee's disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions. An employer only may bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.

  • What are examples of accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self?

    The EEOC advises that accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace. Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others. Other possible reasonable accommodation may be elimination or substitution of particular "marginal" functions, temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting), or moving the employee's location.

    As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.

Here is a link to the EEOC guidance.


A Timely Webinar on COVID-19 and Employee Benefit Plans

On May 14, 2020 from 9:00 - 10:00 a.m. our dear friends and colleagues Alison Fay and Sherrie Boutwell (Boutwell Fay LLP) are hosting an informative and timely presentation: COVID-19 - Employers' Action List for Employee Benefit Plans, to help employers navigate employee benefits in these challenging times. The webinar will include how to understand and apply recent federal law and COVID-19 related issues impacting employee benefit plans. Here is a link to the program and registration.

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.