So many aspects of daily life and doing business have changed during this global pandemic. If you have employees in California, it’s time for your injury and illness prevention plan (IIPP) to change, too.

By way of background, California Labor Code § 6401.7 requires that every employer have a written program that, among other things, identifies workplace hazards and trains employees on how to address them. It also requires that employers update their plans when new hazards emerge. Well, if you’ve seen the news in the last few months, you may have noticed that a new hazard has emerged. (Cue Jaws theme.)

In response to that new hazard, Cal/OSHA has issued Interim General Guidelines on Protecting Workers from COVID-19. The guidelines first discuss which employers must comply with Cal/OSHA’s more stringent Aerosol Transmissible Diseases Standard (California Code of Regulations, title 8, section 5199). Those apply to hospitals, correctional facilities, homeless shelters, certain labs, and other workplaces that are deemed particularly vulnerable. But every employer, regardless of whether they’re subject to those requirements, should have a section of their IIPP that addresses COVID-19 and includes the following items:

  • Actively encourage sick employees to stay home.
  • Immediately send employees sick employees home or to medical care.
  • Ensure that employees who are out ill with fever or acute respiratory symptoms do not return to work until they’ve:
    • Had no fever (without the use of fever-reducing drugs) and no acute respiratory illness symptoms for at least three days; and
    • It’s been at least 10 days since the symptoms first appeared.
  • Provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 if required to by the Families First Coronavirus Response Act.
  • Ensure employees that return to work following an illness promptly report any recurrence of symptoms.
  • Encourage employees to telework from home when possible.
  • Practice physical distancing by by using video or telephonic meetings and maintaining a distance of at least six feet between persons at the workplace when possible.
  • Provide employees with cloth face covers or encourage employees to use their own face covers for use whenever employees may be in workplaces with other persons.
  • Avoid shared workspaces (desks, offices, and cubicles) and work items (phones, computers, other work tools, and equipment) when possible. If they must be shared, clean and disinfect shared workspaces and work items before and after use.
  • Establish procedures to routinely clean and disinfect commonly touched objects and surfaces such as elevator buttons, handrails, copy machines, faucets, and doorknobs.
  • If an employee is confirmed to have COVID-19 infection:
    • Inform employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act.
    • Temporarily close the general area where the infected employee worked until cleaning is completed.
    • Conduct deep cleaning of the entire general area where the infected employee worked and may have been, including breakrooms, restrooms and travel areas, with a cleaning agent approved for use by the EPA against coronavirus. It should ideally be performed by a professional cleaning service. The person doing the cleaning should be equipped with proper PPE.
  • Advise employees to avoid non-essential travel if possible.

To protect employees in industries such as retail sales or service industries that have frequent contact with the public, employers should take the following additional steps:

  • Frequently clean and disinfect surfaces touched by the public such as credit card machines, touch screens, shopping carts and doors.
  • Protect cashiers and other workers who have frequent interaction with the public with engineering controls such as Plexiglas screens or other physical barriers, or spatial barriers of at least six feet, if feasible.
  • If exposures to the general public cannot be eliminated with engineering controls, require or encourage customers to wear face coverings, which are mandatory in some jurisdictions.
  • Schedule work to allow frequent hand washing by employees handling items (cash, credit cards, merchandise, etc.) touched by members of the public.  Executive Order N-51-20, for example, requires that employees working in food facilities be allowed to wash their hands every 30 minutes and additionally, as needed.
  • Enforce physical distancing by limiting the number of customers in retail space.
  • Ask customers to take precautions such as only touching items they intend to purchase, and provide hand sanitizer stations.
  • Provide workers handling items touched by the public with PPE (i.e., disposable gloves).

Of course, having a IIPP accomplishes little if employees are not aware of it. So employers are also expected to train workers in a language they readily understand on the following topics:

  • A general description of COVID-19, symptoms, when to seek medical attention, how to prevent its spread, and the employer’s procedures for preventing its spread at the workplace.
  • How an infected person can spread COVID-19 to others even if they are not sick.
  • How to prevent the spread of COVID-19 by using cloth face covers.
  • Cough and sneeze etiquette.
  • Washing hands with soap and water for at least 20 seconds, after interacting with other persons and after contacting shared surfaces or objects.
  • Avoiding touching eyes, nose, and mouth with unwashed hands.
  • Avoiding sharing personal items with co-workers (i.e., dishes, cups, utensils, towels.
  • Providing tissues, no-touch disposal trash cans and hand sanitizer for use by employees.
  • Safely using cleaners and disinfectants, which includes:
    • The hazards of the cleaners and disinfectants used at the worksite.
    • Wearing PPE (such as gloves).
    • Ensuring cleaners and disinfectants are used in a manner that does not endanger employees.

That’s a lot, I know. Fortunately these are just guidelines. They do not impose new legal requirements.

Want more information about when to reopen, how to bring back workers, managing leaves and accommodations, and protecting your workers and customers? Jenny H. Fuller, Brian McGinnis, and I will be conducting a free webinar on this topic on May 28, 2020 at 10 a.m. Pacific. Get details and register here.

In response to the COVID-19 emergency and stay-at-home orders, Mayor Eric Garcetti signed two new ordinances into law.  Both ordinances will become effective on June 14, 2020.

The Right to Recall Ordinance dictates rehire protocol to select employers, providing guidelines based on seniority for select employers that laid off workers during the COVID-19 crisis.

The Worker Retention Ordinance requires that employers in the same select industries provide seniority preferences to workers in the event of a change in business ownership or control within two years of the City of Los Angeles’s COVID-19 emergency declarations.

For more information, be sure to check out our alert.

Governor Newsom announced today that California has moved on to early Stage 2, but only for cities and counties that obtain state approval.

Under Stage 2, certain businesses, establishments or activities may qualify to reopen including:

  • Dine-in restaurants
  • Limited services
  • Outdoor museums
  • Shopping centers & all in-store retail
  • All office-based workplaces
  • All manufacturing industries supporting retail
  • All logistics industries supporting retail
  • Stage 1 Sectors (essential businesses)

The state published specific guidance for restaurants, as well as a checklist to use for re-opening planning, and to post for the public.   For any restaurant considering re-opening, these lists are a great place to start.

There is also guidance and a checklist for shopping centers.  Another very helpful resource.

The following sectors remain closed throughout the state:

  • Personal services such as hair and nail salons, tattoo parlors, gyms and fitness studios
  • Hospitality services, such as bars, wineries, tasting rooms and lounges
  • Entertainment venues, such as movie theaters, gaming facilities, and pro sports Indoor museums, kids museums and gallery spaces, zoos, and libraries
  • Community centers, public pools, playgrounds, and picnic areas
  • Religious services and cultural ceremonies
  • Nightclubs
  • Concert venues
  • Live audience sports
  • Festivals
  • Theme parks
  • Hotels/lodging for leisure and tourism

Keep in mind that each city and county is governed by particular local orders.  Chances are that many businesses (especially those in more populated cities and counties, including Los Angeles), will remain closed in many respects through summer.

Governor Gavin Newsom issued an executive order on May 6, 2020 that creates a rebuttable presumption that employees working outside the home who contract COVID-19 became infected at work. They would therefore be entitled to workers’ compensation benefits.

Here’s how the presumption works. An employee will be presumed to have contracted the virus at work if:

  1. The employee tested positive for or was diagnosed with COVID-19 within 14 days after the employee worked at his or her place of employment at the employer’s direction;
  2. The date the employee worked as described in the preceding paragraph was on or after March 19, 2020;
  3. The workplace was not in the employee’s home; and
  4. If the employee was diagnosed with COVID-19, but was not tested, the diagnosis was given by a physician licensed in California and is confirmed by further testing within 30 days of the diagnosis.

Of course, there’s no factual basis for the presumption. Someone could have been exposed anywhere and in the vast majority of cases, we may never know the source of exposure. But the governor has decided that California employers, so many of whom are already struggling to survive, should bear the cost of care through higher workers’ compensation insurance premiums.

Takeaway: If an employee tells you they believe they have COVID-19, and they meet the criteria above, you have one workday to get them the claim form (DWC 1). Also, advise your workers’ comp carrier immediately, since the time to try to show alternative causes is extremely limited.

I have been speaking with many clients about the first steps for return-to-work planning.  The Covid-19 shut-downs were so quick that there wasn’t  sufficient time to plan.  Employers want to have a more thoughtful approach to bringing the workforce back.  Here are a few initial considerations.

First, consider what message you provided to your workforce when you closed.  Did you tell everyone the layoff/furlough was temporary and they would be asked to return when you were allowed to re-open?  If so, then keep your word.  Or did you lay everyone off with no promise to return?

Second, depending on your pre-closure message, it may make sense to simply reinstate workers with their prior offer letter and personnel file intact.  Consider obtaining confirmation that the information is still accurate, and disclosing that the prior personnel file remains effective.  Keep in mind, you will need to fill out Section 3 to each form I-9.

Third, you can also opt to rehire in a more formal way with an entire new hire packet.  Use this opportunity to have employees sign an updated handbook (to include Covid-19, work-from-home, and safety related policies), and perhaps an updated confidentiality agreement and/or arbitration agreement.  Also reiterate that all employment is at-will and subject to change as the economic situation develops.

Finally, keep in mind that when rehiring, if you cherry pick you may open your company up to discrimination claims.  A conservative approach is to rehire the most senior employees first (i.e., the opposite of the last-in-first-out approach for layoffs).  Any deviation due to skill set or performance should  have documented back-up and be thoroughly vetted.  Also note that some cities (and union contracts) may  requirements about rehiring, as Los Angeles is currently considering.

While employers had to shut down without much notice, the return-to-work phased re-opening process can be more thoughtful and organized.  In these uncertain times, here’s to controlling the things you can (or at least clinging to the illusion of control)!

It shouldn’t surprise anyone that a massive component of California’s economy is and has been agriculture and food service, including farming, canning, processing, and of course, restaurants.  Given the size and scope of these industries in and across California, on April 16, 2020, Governor Newsom signed Executive Order N-51-20, expanding employee protections for Food Service Workers during the COVID-19 pandemic.

Covered Employers

The additional protections are largely consistent with the Families First Coronavirus Response Act (“FFCRA”), except they apply to workers at employers who employ 500 or more employees (instead of fewer than 500 employees, like the FFCRA).  Eligible workers include employees who work in the following:  the canning, freezing, and preserving Industry; industries handling products after harvest; industries preparing agricultural products for market on the farm; agricultural occupations; food facilities (broadly defined under Health and Safety Code section 113789(a)-(b) to include any operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, regardless if food is consumed on or off the premises); or delivery from a food facility.

Worker Benefits

Under the Executive Order, eligible workers are entitled to two weeks of supplemental paid sick leave, calculated based on the number of hours the employee works (with limited exception).  The supplemental paid leave must be offered in addition to other paid sick leave mandated by the State, and employers cannot require the use of paid time off, other unpaid leave, vacation, or other benefits before or in lieu of the supplemental paid sick leave.  The leave must be made “immediately available” on written or oral notice by the employee, so no documentation is required.  Supplemental paid leave under the Executive Order must be paid at the greater of:  (1) the employee’s regular rate; (2) the state minimum wage; or (3) the applicable local minimum wage.  Payments may be capped at $511 per day, and $5,110 in the aggregate.  The one caveat is an employer need not comply if it already provides for equivalent or greater paid leave for the same qualifying reasons authorized by the Executive Order.

Eligible Employees

Eligible workers must work in one of the covered industries identified above, must qualify as an Essential Critical Infrastructure Worker (defined in pertinent part as workers in the “supply chains for feed, animals, and animal products; crop production and the supply chains of seed, fertilizer, and other necessary related materials; and the post-harvesting components of the food supply chain, from processing, production, and packaging through storage and distribution to retail sales, institutional food services, and restaurant or home consumption”); and must leave their residence to perform work.  Qualifying reasons to take supplemental paid sick leave are limited to:  (1) when the worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) when a healthcare provider advises the employee to self-quarantine or self-isolate due to concerns related to COVID-19; or when the employer prohibits the employee from working due to health concerns related to the potential transmission of COVID-19.

Employee Notice

Employers are required to post a notice for employees in a conspicuous place.  Where employees do not regularly report to a work site, notice may be effected by electronic means, i.e. email.  The notice is available here.

Employees Must Wash Hands!

Lastly, Governor Newsom slipped in one additional requirement.  Regardless of the size of the employer, all employees at food facilities “shall be permitted” to wash their hands every 30 minutes, and additionally as needed.  In many instances, employees may already wash their hands more frequently.  But if that is not the practice, employers should ensure they have hand-washing facilities available, and that managers/supervisors are aware of the requirement and are enabling employees to wash their hands at least every 30 minutes.

This is of course only one of many Executive Orders, laws, and administrative mandates that has been enacted since COVID-19 began.  For more information and to stay up to date, make sure to visit Fox Rothschild’s Coronavirus Resources Page.

Written by Sharon Shaoulian

California’s music industry finally came to an agreement with lawmakers on pending amendments to California’s Assembly Bill 5 (AB5).  The amendments would provide relief to professionals in the music industry, including recording artists, musicians, composers, songwriters and vocalists, amending the prior language in AB5 that created hurdles for self-employed music professionals to obtain work.

To provide some background, Governor Gavin Newsom signed AB5 into law in September 2019.  The new law expanded the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court. Specifically, it applied Dynamex’s ABC Test to both California Wage Orders and the California Labor Code, creating the presumption that workers in California are employees, not independent contractors – unless an employer can satisfy a three pronged test “ABC test.”

  • That the worker and his performance of the work are free from the control and direction of the hiring entity, either by contract or in fact;
  • That the worker performs work outside the usual course of the hiring entity’s business; and
  • That the worker is customarily engaged in an independently established trade, occupation or business of the same nature as that of the work performed.

The legislature authorized exemptions from the ABC test for specified industries; yet many in the music industry do not fall into any of the exemptions.

Further, although AB5 was initially designed to protect the rights of workers, as changing their status from independent contractors to employees would afford them benefits they otherwise would not have, the law actually adversely affected many self-employed workers, like musicians.

For example, instead of a musical venue paying musicians and artists by 1099, under AB5 many performers are deemed employees with pay by W2 and benefits like Social Security, disability, workers’ compensation, and unemployment insurance.  Moreover, artists now have to pay their own backup artists and session musicians as employees and provide the same benefits.  Dissatisfaction with this arrangement spread, making it difficult for many in the music industry to obtain work.  The music industry began lobbying the state legislature for an exemption to AB5 as other industries have done.

The lobbying effort was successful.  The new pending amendments will provide exemptions for singers, songwriters, composers, recording artists and other music workers, and states that musicians will again only need to meet the less burdensome Borello test, applied by California courts prior to AB5, in order to determine if an individual is an employer or an independent contractor.  Under this test, the primary test of an employment relationship is whether the person for whom services are rendered has “the right to control the manner and means of accomplishing the result desired.”  This test would allow most music professionals to operate as independent contractors once more.

Of course, if a musician’s work involves substantial control from its hiring entity, such a musician will continue to receive benefits under AB5.  The pending amendments will be considered by the Legislature when it reconvenes.  If passed, this change will go into effect on January 1, 2021.

The White House has issued new guidelines for employers preparing to reopen their workplaces.  While there is no date certain for businesses to reopen, employers can use these guidelines to develop new processes and procedures for ensuring worker safety and a smooth operational transition. Governor Newsom or local officials may develop additional or more restrictive mandates in addition to the federal guidelines.

Specifically, these new guidelines encourage employers to develop and implement policies regarding:

  • Social distancing and personal protective equipment;
  • Temperature checks;
  • Testing, isolating, and contact tracing;
  • Sanitation;
  • Use and disinfection of high traffic areas; and
  • Business travel

In addition to developing the above policies, employers should begin preparing for their “new normal” in anticipation of additional closures should COVID-19 cases surge in their communities.  While assessing what worked and what didn’t under the current California “Stay Home” orders, companies can look forward and examine some of their employment policies.  We recommend focusing on the below policies, which we have seen most impacted the past few weeks:

  • Attendance and Scheduling– Consider staggered schedules for social distancing or cost reduction measures and review call-in policies to ensure no reporting pay is triggered.
  • Paid time off and Sick Leave– Consider whether workers are accruing time off during non-working time, determine whether you want to make changes to accrual rates and eligibility, assess mandatory paid sick leave and adapt policies to incorporate emergency federal and state/municipal paid sick measures.
  • Family and Medical Leave– Consider updating this to include the new emergency leave provisions.
  • Confidentiality– Assess whether employees need additional or varied guidelines in maintaining the confidentiality of documents, meetings and other trade secrets.  Determine how best to protect information given the prevalence of zoom meetings and the likelihood that confidential information is resident in employee homes and more easily accessible to non-employees.

But don’t enforce those dress code policies–I think everyone has thoroughly enjoyed working in their cozy sweats!

Following the April 7, 2020 Worker Protection Order issued by Los Angeles Mayor Eric Garcetti, the Los Angeles County Board of Supervisors passed an Ordinance adding additional safeguards for workers (defined as an “employee or an independent contractor, that either physically works at a retail location that is open to the public and sells groceries, or shops or picks up prepared foods, groceries and other orders from a Restaurant, Retail Grocery Store and/or Retail Drug Store to deliver to a consumer”) in:

  • Retail Grocery Stores (defined as a store that “sells primarily food or household goods, including fresh produce, meats, poultry, fish, deli products, dairy products, canned foods, dry foods, beverages, baked goods, and/or prepared foods”);
  • Retail Drug Stores (defined as a store that “sells a variety of prescription and non-prescription medicines and miscellaneous items, including but not limited to drugs, pharmaceuticals, sundries, fresh produce, meats, poultry, fish, deli products, dairy products, canned foods, dry foods, beverages, and prepared foods”) and;
  • Food Delivery Platforms (defined as “a business that utilizes an online website or other similar presences to interact with customers and acts as an intermediary between its customers/consumers and a Retail Grocery Store, Retail Drug Store and/or Restaurant”).

The Ordinance applies to workers throughout un-incorporated areas within the County of Los Angeles.  A list of un-incorporated areas can be found here.

The Ordinance requires that Retail Grocery Stores and Retail Drug Stores provide workers “who touch products for sale or otherwise interact with customers” at the Employer’s expense, the following:

  • Gloves (if commercially available);
  • Hand sanitizer (if commercially available);
  • Disinfecting cleaning products and other necessary sanitary tools and supplies;
  • Face coverings (non-medical grade);
  • Plexiglass barriers at all points of sale stations between a customer and a worker; and
  • Appropriate training on the proper use, cleaning, and maintenance of the items above.

The Ordinance also requires that Retail Grocery Stores and Retail Drug Stores:

  • Make available dedicated hand-washing or sanitizing stations in all stores for use by workers prior to beginning their shifts;
  • Permit workers to wash their hands at least every thirty (30) minutes;
  • Require workers to wear face coverings (non-medical grade) while on premises;
  • Provide workers access to sanitary restrooms stocked with necessary soap, towels, toilet seat covers and toilet paper;
  • Provide restroom access to Food Delivery Platform workers for “hand-washing purposes”;
  • Provide dedicated shopping time “solely” for customers age 60 and over (as opposed to some stores that have permitted special hours for customers age 65 and over); and
  • Place “proper signage” at entrances to stores informing customers of social distancing requirements (e.g. six feet distance) with “visible markers for customers in line…at point of sale stations.”

Additionally, the Ordinance requires that Retail Grocery Stores and Retail Drug Stores be “maintained in clean condition, and shall cause the shopping carts and baskets to be sanitized between each use,” and that Retail Grocery Stores and Retail Drug Stores cannot “unreasonably withhold approval of a worker’s request to change a work schedule due to childcare/family needs arising from a Health Officer Order, or due to a worker experiencing symptoms with COVID-19.”

Notably, the Order permits Retail Grocery Stores and Retail Drug Stores to “refuse admission or service to any individual who is not wearing a face covering.”

For Food Delivery Platforms, the Ordinance requires that they “provide either (1) a face covering (non-medical grade), and gloves and/or hand sanitizer, or (2) a stipend or other sufficient, available funds for the purchase of face covering (non-medical grade), and gloves and/or sanitizers.”  Additionally, Food Delivery Platforms must now require workers to “wash or sanitize their hands prior to handling any food for delivery,” and must offer its customers “no-contact” delivery options so deliveries can be made without workers coming into close physical contact with customers.

Importantly, the Ordinance also contains a “Retaliation Prohibited” section, which states that Retail Grocery Stores, Retail Drug Stores, and Food Delivery Platforms “shall be prohibited from retaliating against a worker for exercising rights granted by the [Ordinance] or for complying with any Health Officer Order.”  An example in the Ordinance includes taking adverse action against a worker, including reduction of work hours or compensation.  The Ordinance also states that a worker is presumed to be an employee of an employer, and that the employer “has the burden to demonstrate that a worker is not an employee.”

The Ordinance will sunset after the Covid-19 outbreak has ended and emergency orders are lifted.