How California Employers Can Prepare For The “New Normal” As Businesses Begin Reopening

As of the publication of this blog, cases of COVID-19 continue their slow rise in California and its major metropolitan areas. However, the State of California and County of Los Angeles have already begun procedures for reopening certain segments of the business community. As time passes, more and more businesses will be permitted to resume operations in offices and retail spaces. But the working landscape will have changed, and California employers need to educate themselves as to the “new normal,” and their rights and obligations in the lingering COVID-19 landscape.

Both Cal/OSHA and the California Department of Fair Employment and Housing (“Cal-DFEH”) have issued new guidelines for employers who will be opening up for business in the coming weeks and months.

Cal/OSHA Requirements and Recommendations

Every California workplace must protect employees fromcommon workplace hazards, including infections diseases. Under normal circumstances, a typical workplace is not under threat from any particular infectious disease, so employers were previously able to practice common sense in dealing with illness in the workplace. However, since COVID-19 is still considered widespread in nearly every California community, employers must adopt changes to their typical Injury and Illness Prevention Program (“IIPP”). Employers should treat the following as mandatory protocols, instead of just best practices:

• Actively encouraging or requiring sick employees to stay home.
• Immediately sending employees home or to medical care facilities if they are showing COVID-19 symptoms.
• Ensuring that employees out sick refrain from returning until a number of symptom-free days pass, including at least 10 days from when symptoms first appeared.
• Encouraging employees to work from home whenever possible.
• Practicing social distancing by cancelling in-person meetings, facilitating teleconferencing, and maintaining a safe distance between others in the workplace.
• Providing employees with face covers or requiring their use when working with others.
• Ensuring that there are ample supplies of cleaning and disinfection products and making sure that common spaces are routinely cleaned/disinfected.

Employers will also need to train employees as to COVID-19’s symptoms, when to seek medical attention, how to prevent its spread, and the employer’s procedures for preventing its spread at the workplace.

Cal-DFEHRequirements and Recommendations

Cal-DFEH is largely concerned with discriminatory practices and, as such, Cal-DFEH’s new guidelines address medical privacy concerns. The following guidelines are important to consider for any employer as employees return to the workplace:

• An employer may ask any employee displaying COVID-19 symptoms to go home immediately.
• Employees may ask about an employee’s health if they have been experiencing COVID-19 symptoms, but any log of such information must be kept confidential.
• Normally, a request to take an employees body temperature would present an unwarranted privacy concern, but in this “new normal,” employers may measure employees’ body temperature for the limited purpose of evaluating the risk that employee’s presence poses to others in the workplace. It has been suggested that an employer find the least invasive way to take a temperature reading of employees, and to let the employees take their own temperatures, if possible.
• An employer may ask why an individual was out sick to find out if the employee’s return to work poses a potential COVID-19 risk.
• Employers may not identify any employee by name who is quarantined, has tested positive for COVID-19, or has come into contact with someone who has the virus. Employers may, however, notify other employees of such conditions in a way that does not reveal personal health-related information of an employee. For example, an employer may circulate this type of email in his or her workforce: “[Employer] has learned that an employee at the office tested positive for the COVID-19 virus. The employee received positive results of this test on [date]. This email is to notify you that you have potentially been exposed to COVID-19 and you should contact your local public health department for guidance and any possible actions to take based on individual circumstances.”
• Finally, an employer may require employees to wear personal protective equipment while working. However, where an employee with a disability needs a related reasonable accommodation (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.

In summary, many of the guidelines and requirements issued by California authorities may reflect many employers’ current understanding as to what is and is not permitted or required in the workplace. However, it is important for employers to remember that they are largely responsible for maintaining a safe working environment for employees while also respecting traditional privacy practices.  With a little extra consideration and education, employers all over Los Angeles and the State of California should be able to usher their employees back to the workplace in a safe and responsible manner.

If you have any questions about local, state, or federal laws and regulations pertaining to your business, do not hesitate to contact Shenon Law Group for a consultation. Shenon Law Group is a full-service law firm able to anticipate issues, mitigate risk, and protect your business—regardless of what circumstances might arise.