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Don’t Forget to Check, and Re-Check, the California Reopening Guidelines

Just one week after its release on July 24, California has already issued an updated version of its COVID-19 Employer Playbook for a Safe Reopening, which is intended to offer employers clear and practical guidance on how to safely reopen their businesses during the Coronavirus Disease 2019 (COVID-19) pandemic. In the latest update, employers are instructed to contact the local health department in any jurisdiction where a COVID-19 employee resides (as well as communicating with the local health department in the jurisdiction where the workplace is located) when there is an outbreak in a workplace. It defines an “outbreak” as “three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.” The updated version also adds additional guidance for employers who are considering whether to temporarily suspend operations due to a COVID-19 infection.

In addition, on July 28, 2020, the California Department of Industrial Relations (DIR) quietly released its own “Safe Reopening FAQs for Workers and Employers,” which provides additional helpful guidance for both businesses and workers on topics such as an employer’s safety obligations, face coverings, medical (including temperature) checks, returning to work, and liability waivers.

Some highlights include:

Employer Safety Obligations

  • If a worker is diagnosed or tests positive for COVID-19, employers should follow California Department of Public Health (CDHP) guidelines for addressing a workplace outbreak, including, among other things: (1) instructing workers to stay home and requesting they notify the employer if they are having symptoms, were diagnosed, and/or are awaiting test results for COVID-19; (2) reporting to Cal/OSHA any serious injury, illness, or death from COVID-19 (even if work-relatedness is uncertain); and (3) considering testing of other workers to identify additional cases in the workplace.
  • If a worker reports they have been exposed to someone confirmed to have COVID-19 (such as in a household), the employer should recommend that the worker remain home and consult with a medical provider and/or local public health department. The employee may also be subject to a formal local quarantine order, based on the health orders implemented in a given county.

Face Coverings:

  • California employers are required to provide, at no cost to workers, safeguards, such as face coverings, when reasonably necessary to render the workplace safe. However, an employer is under no legal obligation to allow workers to use employer-provided face coverings during non-work hours away from the workplace.

Medical Checks:

  • Employers must pay workers for “all hours worked,” including time that is spent under the employer’s control (including time spent waiting in line) for any required pre-shift medical and/or temperature checks.
  • Employees who are required to conduct and submit results of their medical screenings and/or temperature checks at home, before reporting to work, may also be entitled to compensation for time spent on such tasks, depending on the degree of control over the manner and timing of the medical checks.
  • If the employee records a high temperature and is sent home as a result, the employer may also be required to pay “reporting time pay” in accordance with California law.
  • If a worker is required to use their personal cell phone as part of a medical check, the employer must pay a reasonable percentage of the cell phone bill to compensate the worker for the portion of time they are required to spend on their personal cell phone following the employer’s directions.

Returning to the Worksite:

  • The DIR affirms that if a worksite has been permitted to open and the employer has reviewed relevant industry guidance and put an appropriate plan into action, the employer may require their workers to return to the worksite, regardless of whether they have been able to perform their job functions from home.

Liability Waivers

  • Employers may not require workers to sign a form waiving minimum basic rights under the California Labor Code (such as for workers’ compensation benefits) as a condition of returning to work.

With so many updates frequently taking place, employers should ensure HR professionals and in-house counsel are remaining vigilant and monitoring the rapidly evolving guidance.

©2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 221

About this Author

Charles O. Thompson Employment Attorney with Greenberg Traurig, San Francisco, California

Charles Thompson focuses his practice on employment litigation and counseling representing clients through all phases of Class Actions and Single Plaintiff cases. Charles has wide-ranging experience litigating employment-related issues for public and private companies, having handled over 1,000 employment matters for clients ranging from Fortune 500 companies to Silicon Valley startups. He has tried employment, commercial, and professional liability cases to verdict and directed verdict, and has litigated and appealed cases from California State Courts to the...

Vanessa C. Krumbein Labor & Employment Greenberg Traurig Los Angeles, CA

Vanessa C. Krumbein focuses her practice on counseling employers, in-house counsel, and human resource professionals on a wide range of workplace issues, including employee performance and discipline, employment agreements, compliance with wage and hour laws, managing disability accommodation and leaves of absence, employee classification, and workplace harassment investigations, and she works with companies to develop employee handbooks and appropriate personnel policies and procedures. Vanessa also has experience working on employment issues unique to clients in the media and...