Posted: May 19, 2020 |
As public health official orders are being modified to permit more businesses to reopen throughout California, all businesses should familiarize themselves with state and local reopening plans and California's statewide industry-specific reopening guidance, as businesses will have to make certain modifications to reopen.
California's Pandemic Resilience Roadmap Plan & Industry Guidance
On May 8, 2020, California "gradually" moved into "early" Stage 2 of its Pandemic Resilience Roadmap Plan where some lower-risk workplaces were permitted to open in a phased manner and with necessary modifications, in order to protect public health and result in a lower risk for COVID-19 transmission and outbreak in a community.
Under the Pandemic Resilience Roadmap Plan, before businesses can reopen, they 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 have them
- Implement individual control measures and screenings
- Implement disinfecting protocols
- Implement physical distancing guidance
Additionally, the state issued guidance on an industry-by-industry basis to assist with promoting a safer environment for workers and customers. Businesses may use effective alternative or innovative methods to build upon the guidelines.
Industry-specific guidance has been provided for the following industries: agriculture/livestock, auto dealerships, child care, communications infrastructure, construction, delivery services, energy/utilities, food packing, hotels/lodging, life sciences, limited services, logistics/warehousing facilities, manufacturing, mining/logging, outdoor museums, office workspaces, ports, public transit/intercity passenger rail, real estate transactions, and retail.
The guidance provides methods on how business can prepare for their reopening, such as: establishing a written, worksite-specific COVID-19 prevention plan, performing a comprehensive risk assessment of all work areas, designating a person at each work location to implement the plan, and training and communicating with employees on the plan. The guidance also addresses temperature screening of workers or others entering the workspace or establishment. This is not an exhaustive summary of the guidance protocols and businesses should review the most up-to-date protocols posted on the state's website.
While many components of the guidance are the same across industries, it is not a one-size fits all plan, and specific approaches on how to safely reopen are provided to accommodate different types of industries. Businesses should review the guidance that is relevant to their workplace, prepare a plan based on the guidance for their industry, and are encouraged to post the industry-specific checklist provided by the state in their workplace to show customers and employees that they have reduced the risk and are open for business.
The state clarifies that the guidance is not intended to revoke or repeal any employee rights, either statutory, regulatory or collectively bargained, and is not exhaustive, as it does not include county health orders, nor is it a substitute for any existing safety and health-related regulatory requirements such as those of Cal/OSHA. The state reiterates that businesses should continue to follow the Centers for Disease Control and Prevention (CDC) guidelines as well.
Local Reopening Orders
In conjunction with the state's Pandemic Resilience Roadmap Plan, local health officers are permitted to implement more restrictive measures if conditions in their local jurisdiction warrant it.
Several California counties and cities have issued their own reopening directives, which in some instances, address mandatory face coverings and health screenings. For example, San Diego County's Public Health Official issued an order on May 10, 2020 that provides that each essential business and reopened business must require all employees, subject to some exceptions, to wear mask coverings when 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 developmental disability that prevents them from wearing a face covering are exempt from the order. The order also requires employers to take employees' temperatures [if 100 degrees or more, employees must not be allowed in the workplace] or utilize symptom screening procedures when thermometers are unavailable. Reopened businesses must post a "Safe Reopening Plan" using the form made available by the county. There are many other requirements in the order that are not addressed here, and businesses should review the full order on the San Diego County's website which can be found here.
Los Angeles County is also issuing sector-specific reopening protocols and checklists as it gradually permits certain sectors to reopen. Currently, Los Angeles County has posted reopening protocols for car dealerships, golf courses, retail establishments, substance use disorder and mental health support groups, equestrian centers, outdoor shooting facilities, model airplane area, community gardens, tennis and pickleball courts and other outdoor parks and recreational facilities. The relevant Los Angeles County website can be found here.
Orange County's Public Health Official Order was superseded on March 30, 2020 by the state's "stay at home order" until further notice. However, in response to Governor Newsom's recent announcement on May 18, 2020 loosening county reopening restrictions, it has been reported that Orange County supervisors are urging the local Public Health Official to submit business reopening plans to the state so more establishments can reopen sooner.
To stay current on changes to public health guidance and state/local orders, as the COVID-19 situation continues, businesses should continue to regularly monitor information posted on the state and local websites.
Employment-related lawsuits stemming from the COVID-19 crisis are on the rise and employers should take the time to carefully review the reopening orders and guidance applicable to their businesses and make the necessary modifications. Businesses are also encouraged to consult with counsel for guidance on their reopening plans as other legal issues may be implicated involving potential discrimination/retaliation, wage and hour, health, and privacy concerns.
For more information on developing and implementing reopening policies that track with state and local reopening plans, our attorneys are available to provide guidance on this evolving issue.
Alison C. Gibbs, Esq. is a Senior Associate of the firm's Employment Practice Group. Alison represents employers in a wide-range of employment-related litigation, including wage and hour defense, and defense of discrimination, harassment and retaliation claims. Alison also regularly advises employers before litigation ever occurs, handling employment disputes and managing day-to-day employee issues, including reviewing employee handbooks policies, wage and hour compliance, leave issues, internal investigations, lay-offs, disciplinary action, terminations, severance negotiations, and other employment practices