August 4, 2021

Volume XI, Number 216


August 03, 2021

Subscribe to Latest Legal News and Analysis

August 02, 2021

Subscribe to Latest Legal News and Analysis

Orange is the New Red: Navigating California’s Reopening Restrictions

Last week, San Francisco, Santa Clara and Marin Counties joined several other northern California counties in the less restrictive Orange Tier under California’s Blueprint for a Safer Economy Tier System. Effective March 31, 2021, several other counties, including Alameda, Santa Cruz and the Southern California counties of Los Angeles and Orange, joined them. With this move, some non-essential indoor businesses in these counties, including office-based workspaces, are now permitted to re-open, subject to necessary modifications (and subject to approval by local county public health departments). It has been over one year since offices were forced to close under state and local stay at home orders in these areas, and although much of Southern California remains in the Red Tier, this move is a positive sign that life may soon return to pre-pandemic normal in California. But as businesses get ready to bring employees back to work, there are many considerations (and Orders, Directives, and Guidelines) that should be carefully reviewed when putting reopening plans into place to ensure that when the time comes, employees are being brought back to work safely.

In the Orange Tier, businesses are still subject to face covering and social distancing requirements, and capacity restrictions (typically between 25-50% depending on the nature of the business) under the state’s requirements. Employers should be mindful that the state’s requirement and industry-specific guidance only sets the floor for businesses – and many counties have set additional (and typically more restrictive) requirements that businesses are required to plan for before they re-open. For example, while the state’s industry guidance does not set specific capacity restrictions for office-based workplaces, in San Francisco, offices for non-essential businesses with fewer than 20 personnel must reduce their maximum occupancy to the number of people who can maintain at least six feet of physical distance from each other in the workplace at all times. Non-essential offices with 20 or more personnel must reduce their maximum occupancy to the lesser of: (1) 25% the office facility’s normal maximum occupancy, or (2) the number of people who can maintain at least six feet of physical distance from each other in the office facility at all times. Moreover, regardless of these capacity limitations set by the County, all workers who are able to telecommute must be “strongly encouraged to continue to do so” to the greatest extent feasible. In other words, non-essential office-based businesses must continue to maximize remote work in the Orange Tier and things are not yet “business as usual.”

Some of the most important considerations, however, go beyond capacity restrictions. As more businesses are allowed to re-open and expand their indoor operations, employers should consider taking steps to ensure they are staying on top of current requirements with respect to at least each of the following areas:

  • Social Distancing Protocols. Many counties have specific protocols that employers must post at the worksite, train on, and distribute to employees (and in some cases, submit to the county online) before allowing employees to perform in-person work. These protocols are updated by the counties periodically (and therefore employers should stay informed of changes and update the forms accordingly), and typically include requirements on face coverings, cleaning and disinfecting the workplace, and individual control measures and screening, among various other considerations.

  • COVID-19 Prevention Program. Most employers in California are now required to develop and implement a COVID-19 Prevention Program under Cal/OSHA’s COVID-19 Emergency Temporary Standards. This includes, for example, performing a detailed risk assessment and implementing a site-specific program, including putting controls and protocols in place for issues such as COVID-19 testing, investigations and contact tracing, return to work criteria and exclusion pay, and communications with employees.

  • Training. The state industry guidance and checklists include topics that employees should be trained on prior to bringing employees back to work, including on how COVID-19 is spread, infection prevention techniques, staying home and getting tested if a worker has COVID-19 symptoms, and information regarding COVID-19-related benefits that affected employees may be entitled to under applicable laws.

  • Signage Requirements. Various counties have created industry specific signage and posting requirements for business entrances, elevators, stairs, bathrooms, break rooms, and cafeterias.

  • Plumbing and Ventilation. Employers should evaluate state and local requirements and guidance with respect to ventilation and make adjustments and improvements where necessary. Additionally, for businesses that have remained closed for the past year, employers should determine whether there are additional requirements they may be subject to relating to proper flushing out of pipes before reoccupying the worksite.

  • Reporting Requirements Following a Positive COVID-19 Case. While there are statewide requirements with respect to reporting COVID-19 cases and outbreaks in the workplace to employees and contractors, local public health departments, Cal/OSHA and workers’ compensation carriers, counties may have different and more restrictive requirements that employers need to be aware of and plan for. For example, Santa Clara County requires businesses to report to the Public Health Department within 4 hours of learning that any of their workers are confirmed to be positive for COVID-19.

  • Employment Policies and Benefits. Employers should consider reviewing and updating their employment policies to incorporate any applicable changes related to COVID-19. For example, in addition to the voluntary extension of paid sick time and leave under the Families First Coronavirus Response Act, California recently revived and expanded its supplemental COVID-19 paid sick leave requirements for all employers with more than 25 employees. Various localities have also extended and expanded their own paid sick leave requirements, which in some cases, may offset the state’s required supplemental COVID-19 paid sick leave. Employers should carefully analyze the overlapping requirements to ensure compliance with all applicable laws.

  • Vaccination Considerations. Although Guidance issued by the California Department of Fair Employment and Housing (as well as the federal EEOC) appears to permit employers to require employees to receive the COVID-19 vaccine as a condition of employment, subject to certain considerations and necessary accommodations, other state and/or federal laws (such as the federal Food Drug and Cosmetic Act) may prove obstacles to such mandates. Moreover, simply because employers can mandate the vaccine, does not necessarily mean they should. As vaccines become more widely available across all age groups, California employers should carefully evaluate their options and anticipate the legal and health risks associated with having such policies in place (including, for example, considerations related to incentivizing vaccination and evaluating accommodation issues arising from same).

Fortunately, the state agencies have taken steps to assist California employers by creating a COVID-19 Employer Portal that generates a customized road map for reopening based on an employer’s answers to various questions about the business type, applicable county of operation, and compliance practices already in place. The portal takes employers through a set of considerations to ensure businesses have the necessary protocols and policies in place prior to reopening, and provides links to applicable state and local resources. Of course, employers are still ultimately responsible for sorting through the applicable guidance and implementing the necessary changes specific to the worksite in order to ensure compliance.

Finally, as we have seen in the past, employers should be mindful that a move to a less restrictive tier does not guarantee that a county may not be suddenly moved back to a more restrictive tier. Businesses should continue to expect the unexpected.

©2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XI, Number 91

About this Author

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...

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...