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New California’s Employer Playbook for a Safe Re-Opening & FFCRA Resources

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On July 24, 2020, the California Department of Public Health released its Employer Playbook For a Safe Reopening providing a summary of information, links and general guidance for California employers related to COVID-19 and safely re-opening business operations.

The Playbook, which consists of 32 pages, contains links to state and local resources, provides checklists and an overview of the actions that employers should undertake to provide for a safe workplace for re-opening.

The topics covered include How to Open Safely, What to Do If There Is A Case Of Covid-19 in the Workplace, Enforcement and Compliance, and Worker Education.  The Appendices include a comprehensive list of Resources, Enforcement and Compliance Contacts and some “case studies.” Below is a summary of the guidance contained in the Playbook.


HOW TO OPEN SAFELY
All employers must implement a plan that:
  • Is specific to your workplace
  • Identifies all areas and job tasks with potential exposures to COVID-19
  •  Includes control measures to eliminate or reduce such exposures
  • Maintains healthy business operations
  • Maintains a healthy work environment
  • Provides effective training for workers on how to limit the spread of COVID-19, including self screening, and determining when it is appropriate to stay home
  • Encourages workers to give input into an effective workplace plan

INDUSTRY SPECIFIC GUIDANCE AND CHECKLISTS
The following steps are additional requirements that all facilities must undertake before re-opening:
  • Perform a detailed risk assessment and create a specific COVID-19 prevention plan
  • Set up individual control measures and screenings
  • Put disinfection protocols in place
  • Establish physical distancing guidelines
  • Establish universal face covering requirements (with allowed exceptions) in accordance with CDPH guidelines. The Playbook provides guidance for employers and workers in enforcing mask requirements
When creating and implementing the above steps, employers must also take into consideration additional local, federal, and state guidance (e.g. CDC, Cal-OSHA and the Los Angeles Department of Public Health) as each may have issued industry specific guidelines on re-opening protocols.

STEPS TO TAKE WHEN THERE IS A CASE OF COVID-19 IN THE WORKPLACE

The Playbook details the steps that employers must take to manage an “outbreak”. In addition, the requirements for an employee returning to work are explained along with providing the CDPH and Cal/OSHA issued state wide Industry-Specific Guidance and Checklists (https://covid19.ca.gov/industry-guidance/) to help employers as they re-open their businesses. The guidance is designed to meet the needs of each industry sector but are also customizable to meet individual business needs.

The Playbook provides guidance on the following topics:

  • Outbreak Identification Preparedness Action plan which includes designating a COVID-19 coordinator;
  • Communication of Identified Cases of COVID-19 to co-workers and the local Department of Public Health.
  • Employers are required to not only communicate with their employees when there is a COVID-19 positive case but also communicate with the Local Health Department. Employers must communicate with the Los Angeles Department of Public Health if there are 3 or more cases of COVID-19 within a span of 14 days.
  • The Los Angeles Department of Public Health can be reached at 888-397-3993 or 213-240-7821.
  • Employers may be required to provide a roster of all workers to the Local Health Department where the outbreak has occurred.
  • Preventing further spread of COVID-19 in the workplace which includes a checklist of action items after a case of COVID-19 has been identified in the workplace.
RETURNING TO WORK AFTER ISOLATION
The section that likely is the most helpful is the section on steps to undertake to have employees return to work and includes the chart of what to do depending on whether the workers is Symptomatic Positive, Asymptomatic Positive, Symptomatic Negative, Asymptomatic Negative and Symptomatic Untested, Asymptomatic Untested or unable to be tested, which was published by the CDC (a copy of which can be found here).

REPORTING AND RECORDING CASES TO CAL/OSHA
RECORDING CASES OF COVID-19:

To be recordable, an illness must be work-related and result in one of the following:

  • Death
  • Days away from work
  • Restricted work or transfer to another job
  • Medical treatment beyond first aid
  • Loss of consciousness, or
  • A significant injury or illness diagnosed by a physician or other licensed health care professional

If a work-related COVID-19 case meets one of these criteria, then covered employers in California must record the case on their 300, 300A and 301 or equivalent forms.

REPORTING COVID-19 CASES TO CAL/OSHA:
  • Employers must also report to Cal/OSHA any serious illness, serious injury or death of a worker that occurred at work or in connection with work, within eight hours of when they knew or should have known of the illness. This includes a COVID-19 illness if it meets the definition of serious illness which includes, among other things, any illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization for other than medical observation or diagnostic testing.

If a worker becomes ill while at work and is admitted as in-patient at a hospital — regardless of the duration of the hospitalization — the illness occurred in a place of employment, so the employer must report this illness to the nearest Cal/OSHA office.

  • Reportable illnesses are not limited to instances when the worker becomes ill at work. Serious illnesses include illnesses contracted “in connection with any employment”, which can include those contracted in connection with work but with symptoms that begin to appear outside of work.

LEAVE BENEFITS FOR EMPLOYEES
The Playbook outlines the following leaves that may be available to employees:
  • California Family Rights Act (CFRA)
  • Paid Sick Leave – California and/or Local Paid Sick Leave ordinances
  • FFRCA Paid Sick Leave of 80 hours
  • State Disability Insurance and Paid Family Leave (PFL)
  • Regular and Pandemic Unemployment Benefits
  • Workers Compensation, which pursuant to a recent Executive Order by Governor Newsom, provides that certain workers who contracted a COVID-19 related illness between March 19 and July 5, 2020 are presumed to have contracted the illness at work and are presumptively entitled to workers compensation benefits.
The Playbook provides checklists under each topic above.
Employers should also keep in mind how many of these entitlements and protections intersect and additional obligations employers have under California’s Fair Employment and Housing Act (FEHA).

CALIFORNIA’S ENFORCEMENT AND COMPLIANCE EFFORTS

The Playbook provides an explanation of the California COVID-19 Task Force, which has been created to monitor and enforce violation of California’s statutes and orders. The agencies included in the task force are: Alcoholic Beverage Control Department (ABC), Department of Consumer Affairs (DCA), Department of Industrial Relations (DIR), and others. Contact information for each of these agencies is provided in Appendix B of the Playbook.

COVID-19 RELATED QUESTIONS

The Playbook provides an email address within the CDPH for employers to make any inquiries about whether a specific workplace activity is allowed: essentialservicesinquiries@cdph.ca.gov.

Employers should find the contents of the Playbook helpful in addressing and locating the relevant information and guidance from the numerous state, federal and local agencies for the situations they are facing and will continue to encounter on a daily basis regarding COVID-19 related workplace issues.


WAGE & HOUR DIVISION OF DEPT. OF LABOR TOOLS & RESOURCES FOR FFCRA

The Wage & Hour Division (WHD) of the U.S. Department of Labor (DOL) is undertaking investigations into alleged violations of the leave of absence provisions in the FFCRA by employers. If violations are found to have occurred, the WHD will order the payment of wages to employees who were wrongfully denied leave. Such an occurrence was found in a recent case in San Jose when an employer terminated workers eligible for leave when the workers requested leave.

The WHD has educational online tools to avoid violations and recently published a Family First Coronavirus Response Act poster that explains paid sick leave and expanded family and medical leave related to the coronavirus.

The WHD also has a “Quick Benefits Tips” site for information about how much leave workers may qualify to use, and the wages employers must pay.

The law enables employers to provide paid leave reimbursed by tax credits, while at the same time ensuring that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus.

WHD provides additional information on common issues employers and employees face when responding to the coronavirus and its effects on wages and hours worked under the Fair Labor Standards Act and on job-protected leave under the Family and Medical Leave Act at https://www.dol.gov/agencies/whd/pandemic


As the guidance issued by the state and federal agencies is regularly changing, as is the medical information known about COVID-19, this memo is provided solely as a reference tool to be used for informational purposes and should not be construed or interpreted as providing legal advice related to any specific case or cases.


This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2020.