Governor Newsom and local government officials have begun relaxing the existing Stay-At-Home or “Shelter-In-Place” Orders, consistent with Governor’s Road Map to the re-opening of California. California employers should now plan for their employees’ return to work at their offices and worksites. Governor Newsom’s recent announcement that “Stage 2” of the proposed “4-Stage” re-opening plan could allow for a gradual opening of lower-risk workplaces, with some retail, manufacturing, and logistics sectors being first to open, followed by sectors such as offices and dine-in restaurants, with proper precautions.
By law, before re-opening for business, every business must do all the following:
Before reopening, all facilities must:
• Perform a detailed risk assessment and implement a site-specific protection plan (a sample, editable plan is in the link; however legal counsel should be consulted to ensure your plan is legally compliant and proper for your specific business);
• Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and to stay home if they have such symptoms;
• Implement individual control measures and screenings;
• Implement disinfecting protocols;
• Implement physical distancing guidelines;
• It is critical that employees needing to self-isolate because of COVID-19 are encouraged to stay at home, with sick leave policies to support that, to prevent further infection in your workplace. See additional information on government programs supporting sick leave and worker’s compensation for COVID-19.
What follows is a recommendation on generally how to comply with the Governor’s Order. Consultation with a law firm regarding your specific business is recommended to ensure proper compliance, as the advice that follows is general advice that may or may not fit your business needs.
1. MAKE A SITE-SPECIFIC “PROTECTION PLAN”
Write a plan for each office, job site, etc. that assesses the risk of infection to persons at place where employees will perform work. You may wish to designate a COVID-19 coordinator or a small team to handle all COVID-19-related questions to avoid confusion. Early, frequent, and clear communications regarding the employer’s plan for employees, including new policies applicable to employees when they return help for a smoother return to work for employers and employees.
Cal/OSHA has offered the following suggestions regarding worksite specific plans, recognizing the differences in possible virus exposure levels in each sector:
On May 14, 2020, the CDC issued a package of tools to help employers making reopening decisions during the COVID-19 pandemic. The CDC created a flow chart for workplaces. Similar flow charts are available for schools, restaurants and bars, mass transit, child care programs, youth programs, and camps are also available.
2. KEEP UP-TO-DATE ON APPLICABLE FEDERAL, STATE AND LOCAL ORDERS AND THEIR COVID-19 PUBLICATIONS
Keep in mind that every business may be covered by different orders set by federal, state, County, or City governments. There may be conflicts between federal government and California and Counties and Cities between the Governor’s Office.
Local governments may wish to move faster or slower than the Governor or the U.S. Government recommends. Guidance from the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), and others provides rapidly changing and updated information that should be checked as appropriate as information about COVID-19 develops. Many agencies provide guidance from their agency’s perspective.
3. MAKE YOUR WORKPLACE REASONABLY SAFE
Many buildings may have been vacant and without cleaning services. Before having employees return to work, employers must prepare their physical workplaces for their employees to be reasonably safe. Cal/OSHA has provided a checklist for offices. Every business should review the recommendations closest to their industry or consult with a lawyer to ensure proper compliance. Some of Cal/OSHA’s recommended cleaning and disinfecting protocols are stated below.
4. EMPLOYERS SHOULD IMPLEMENT DISTANCING PRACTICES TO HELP PROTECT EMPLOYEES FROM DISEASE
Employers should consider implementing physical distancing between employees. While circumstances may differ by employer and by industry, the California Department of Industrial Relations provides the following recommendations and considerations:
5. EMPLOYERS SHOULD REDUCE THE RISK OF INFECTION
Some considerations to help reduce the possibility of COVID-19 infection in the workplace may include:
• Informing employees of free offerings of local COVID-19 tests and/or antibody tests.
• Temperature checks, as some local orders require or encourage temperature checks for all employees before entering the workplace. However, such checks involve a number of legal compliance issues, so employers should work with legal counsel in implementing
temperature checks or other medical screenings as these implicate employee privacy issues.
• Having employees to self-isolate or quarantine if they experience COVID-19 related symptoms before they return to the workplace.
• Promoting face coverings for all employees at the workplace.
• Complying with various reporting requirements for employees who test positive for COVID-19.
• Promptly responding to reports of any possible COVID-19 infection and potential exposure.
Note that under Governor Newsom’s Executive Order N-62-20, any COVID-19-related illness of an employee is presumed to arise in the course of employment for purposes of workers’ compensation if, among other conditions, the employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that employee performed labor or services for the employer. (This presumption does not apply to work performed remotely at an employee’s residence).
6. EMPLOYERS SHOULD REVIEW/REVISE THEIR EXISTING PERSONNEL POLICIES FOR LEGAL COMPLIANCE
Employers should also consider whether their personnel policies need to be updated in light of the COVID-19 pandemic, including the following:
• Sick leave policies;
• Disability policies;
• Family care policies;
• Telework policies;
• Employee handbooks;
• Required posters.
In evaluating re-opening plans, employers should be guided by the general principles of advance planning, communication, safety, and responsiveness by following the most recent and updated federal, state, and local recommendations. From a compliance perspective, it is generally better for the employer to follow the more stringent guidelines when possible to reduce the potential for adverse employment claims.
I, John Armstrong of Horwitz + Armstrong prepared this guide from review of applicable websites, from both private and public sectors. Hyperlinks to key governmental websites have been inserted to assist with compliance. This guide is not intended to provide legal advice, but general guidance. Every business should consult with legal counsel to ensure that their plans and policies meet up-to-date and ever-changing legal requirements, specific to that business’s industry and circumstances.
If you are interested in learning more about re-opening your cannabis business, then please contact John Armstrong at firstname.lastname@example.org.