Question:  I read that Governor Newsom is allowing California businesses to reopen.  What do I need to do to resume my business?

Answer:  On May 7, 2020, Governor Newsom announced that certain California businesses may reopen – with specific adaptations.  At this time, only certain retail (curbside pickup only), manufacturing, and logistics businesses have been approved for reopening, provided they implement activities to lower the impact of COVID-19 in the workplace.  Further, businesses in Monterey County should also comply with the County’s Orders for reopening, which may be more restrictive.

In conjunction with this announcement, Governor Newsom issued reopening guidance for businesses with the goal of having safe, clean environments for workers and customers.  For instance, Governor Newsom’s Guidance states that prior to reopening, all facilities must:

  1. Perform a detailed risk assessment and implement a site-specific protection plan;
  2. 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;
  3. Implement individual control measures and screenings;
  4. Implement disinfecting protocols; and
  5. Implement physical distancing guidelines.

Businesses will be required to provide personal protective equipment (“PPE”) such as masks and hand sanitizer.  Additional PPE requirements will depend on the hazard posed to the worker in the specific workplace.  Prior to reopening, businesses should determine what PPE is required, inventory their stock, and maintain a sufficient supply.  An employee with a disability may need a PPE related reasonable accommodation (e.g., non-latex gloves), and employers should be prepared to provide these, absent undue hardship.  Businesses should also establish a regular cleaning schedule for common areas and provide cleaning supplies throughout the worksite for employees to sanitize frequently touched items (e.g., pens, counters, keyboards).  Employees should be reminded to avoid using other employees’ phones, desks, offices, or other work tools and equipment, when possible.

Currently, reopened businesses must also comply with social distancing guidelines and should plan ahead and take steps to implement social distancing measures.  For example, employers may consider the feasibility of increasing the physical space between workers in work and break areas; limiting or prohibiting in-person meetings; and implementing flexible work hours (e.g., staggered shifts).

Businesses that choose to conduct temperature checks of staff and visitors entering buildings should have a written policy and notification in place.  Employees should be reminded and encouraged to stay home if they are ill.  Any employee who reports to work and exhibits symptoms of COVID-19 should be separated from other employees and sent home.  In such situations, employers should notify those who had contact with the ill employee of their potential exposure, but should not identify the ill employee by name to ensure compliance with federal and state privacy laws.

Finally, employers that laid off and are bringing back their workforce must comply with re-hire requirements.  The requirement that employers provide employees with certain federal and state forms and pamphlets applies, even when rehiring a recently laid off employee.  Rehired employees may also be required to complete a new Form I-9.  Previously accrued and unused paid sick days must be reinstated for all employees rehired within 1 year, and employees must be allowed to use such days immediately.  There is currently no agency guidance on whether employers may conduct drug screens or criminal background checks on re-hires, and employers should consult with legal counsel before doing so.