News & Events

Returning to (Adapted) Normal Business

by Sara Boyns

May 15, 2020

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.

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Privacy Implications in Collecting and Retaining COVID-19 Data

by Fenton & Keller

May 1, 2020

Question: What are some of the privacy implications for employers who ask an employee about his or her health conditions concerning COVID-19 and the retention of that information?

Answer:  As employers evaluate what measures to implement to address COVID-19 in the workplace, such as health questionnaires and on-site temperature measurements, employers must remember that the information they collect, and how they collect it, must be carefully controlled because that information is protected employee medical information.  Employers must continue to follow existing state and federal laws regarding confidentiality and employee privacy, especially as these pertain to medical information.

The Department of Fair Employment and Housing (“DFEH”) recently issued guidance on employment issues related to COVID-19. The guidance clarifies that employers may ask employees if they are experiencing COVID-19 symptoms and send employees home from work if they display COVID-19 symptoms. Moreover, employers may measure employees’ body temperature for the limited purpose of evaluating the risk that an employee’s presence poses in the workplace.  An employer may also ask why an individual did not report to work if the employer suspects an employee illness. These measures must be uniformly applied in a non-discriminatory manner, and the data collected must be maintained in a confidential medical file in a secure location like any other employee medical information. Access to the information should be limited to designated individuals.

The DFEH guidance also states that to comply with privacy laws, employers should not identify by name any employee who tests positive for, or is suspected to have, COVID-19.  Employers may notify affected employees of potential exposure to COVID-19, but without revealing the personal health information or identity of an employee who may be the source of the exposure.  The DFEH suggested notification is available at https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf

If an employer is addressing COVID-19 employee disability, accommodation, or leave issues under the Americans With Disabilities Act, Fair Employment and Housing Act, or the Family and Medical Leave Act, the employer should treat the COVID-19-related information the same way it treats other medical information it receives.

The Health Insurance Portability and Accountability Act (“HIPAA”) also safeguards employee health information by providing national standards for the protection of such information.  HIPAA applies to entities such as health plans, health care clearinghouses, and health care providers.  If a business or its business associates are governed by HIPAA, then HIPAA’s privacy rules apply to disclosures made by employees and other workers of such businesses.  HIPAA privacy requirements do not necessarily apply to employers who have medical information of employees pertaining to COVID-19, unless that business is otherwise subject to HIPAA.

The California Consumer Privacy Act (CCPA) requires covered businesses to provide a notice to California consumers explaining what personal information they collect and how that information is used, including health-related information.  Businesses that either 1) Have annual gross revenues over $25 million, 2) Buy, receive, sell, or share for commercial purposes the personal information of more than 50,000 consumers, households, or devices; or 3) Derive 50 percent or more of its annual revenues from selling consumers’ personal information are subject to the CCPA.  The CCPA notice requirement applies to information gathered about job applicants and employees.  Covered employers should review and update their CCPA notice to address the collection and use of information related to COVID-19.

The bottom line is that in trying to meet the challenge of ensuring employee protection from COVID-19, employers must also ensure the protection of employee medical information under multiple laws.

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Social Distancing Protocols for Essential Business Operations

by Sara Boyns

April 21, 2020

Question:  As a small business owner, how can I ensure my employees’ and guests’ health and safety during continued operations?

Answer:  Monterey County (the “County”) established guidelines and rules for the continuation of certain essential and minimum basic business operations during the Novel Coronavirus Disease 2019 (“COVID-19”) pandemic.  On April 3, 2020, the County issued an updated Shelter in Place Order (the “Order”) which details mandatory Social Distancing Requirements for all individuals engaging in permissible business activities and requires such businesses to establish Social Distancing Protocols.  The Order will remain in effect until 11:59 p.m. on May 3, 2020.

Essential Business Operations.  The Order sets forth 28 categories of business operations which are deemed “essential”  including, but not limited to: restaurants and other facilities that prepare and serve food, but only for delivery or carry out; grocery stores/supermarkets, certified farmers’ markets/stands, food banks; stores selling essential products, such as pet supplies, hygienic products, household consumer products necessary for personal hygiene or the habitability, sanitation, or operation of residences; hardware stores; and laundromats, drycleaners, and laundry service providers.

            Minimum Basic Operations.  The Order allows non-essential businesses to engage in Minimum Basic Operations, which are defined as only those minimal activities necessary to maintain and protect the value of the business’s inventory and facilities; ensure security, safety, and sanitation; process payroll and employee benefits; provide for the delivery of existing inventory directly to residences or businesses; and other related functions.  Similarly, Minimum Basic Operations are permitted at the job site to facilitate remote work.

Social Distancing Requirements.  Social Distancing requires individuals to: maintain at least a 6-foot distance from other individuals who are not part of the same household or living unit; frequently wash hands with soap and water for at least 20 seconds, or use hand sanitizer; cover coughs and sneezes with a tissue or fabric; and avoid all social interaction outside the household when sick with a fever or cough.

Social Distancing Protocols.  The Order requires all Essential Businesses and those performing Minimum Basic Operations to prepare a Social Distancing Protocol to explain how the business is achieving the Social Distancing Requirements described above.  The County encourages businesses to use a form available at https://www.co.monterey.ca.us/home/showdocument?id=88419.

Social Distancing Protocols may include, but are not limited to:

• Limiting the number of people who can enter the facility to ensure that everyone (workers and guests) can easily maintain a minimum 6-foot distance from one another at all times;
• Marking minimum 6-foot increments establishing where individuals should stand in a line to maintain adequate social distancing;
• Indicating whether the business provides hand sanitizer for employees and customers, and where the hand sanitizer is located;
• Providing for contactless payment systems; and
• Regularly cleaning and disinfecting high-touch surfaces, such as counters, tabletops, doorknobs, bathroom fixtures, toilets, phones, keyboards, and tablets.

The Social Distancing Protocol must be posted at or near the entrance of the facility and must be easily viewable by the public and employees. A copy of the Social Distancing Protocol must also be provided to each employee, including electronically for remote workers.

Penalties.  Failure to comply with any provisions of the Order – including failing to establish Social Distancing Protocols or continuing to operate non-essential businesses – may result in criminal and/or civil penalties.

Essential Businesses should enact the required Protocols right away to avoid violation of the Order.

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The Families First Coronavirus Response Act

by Sara Boyns

April 3, 2020

Question: Do I have to pay my employees for time off under the new Families First Coronavirus Response Act?

Answer: The Families First Coronavirus Response Act (FFCRA) was signed March 18, 2020 and is effective April 1.  As of March 31, the Department of Labor (DOL) has not issued regulations, but it has issued guidance for employers, available at https://www.dol.gov/agencies/whd/pandemic.

The FFCRA provides that employees of “covered employers” are eligible for:

• Emergency paid sick leave (“EPSL”) (available to all employees regardless of how long they have worked for the employer):

• • Two weeks (up to 80 hours) at the employee’s regular rate of pay if he/she cannot work because he/she is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis;
  • Two weeks (up to 80 hours) at two-thirds the employee’s regular rate of pay because the employee cannot work because of a bona fide need to care for an individual (not necessarily a family member) subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or must care for a child (under 18) whose school/childcare provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a “substantially similar condition” as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and

• Paid Expanded Family and Medical Leave (“Expanded FMLA”):

• • Up to an additional 10 weeks at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, cannot work due to a bona fide need for leave to care for a child whose school/childcare provider is closed or unavailable for reasons related to COVID-19.

The FFCRA applies to private employers with fewer than 500 employees and public employers with 1 or more employees. The employer must look at the number of employees it has at the time of the request for the leave.

According to the DOL, if an employer closes a worksite before April 1, employees are not eligible for EPSL or Expanded FMLA, "whether your employer closes your worksite for lack of business or because it is required to close pursuant to a federal, state or local directive." If an employer closes the business while someone is on EPSL or Expanded FMLA, it must only pay for any of that leave used before it closed.

If an employer reduces an individual's hours or furloughs the worker due to a lack of work, the person is not entitled to EPSL or Expanded FMLA. According to the DOL, “This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.”  By contrast, an individual may take EPSL or Expanded FMLA if a Coronavirus-qualifying reason prevents him/her from working a full schedule. In all these circumstances the employee may be eligible for unemployment insurance benefits.

If your business is open and your employee would be working but must stay home to care for a child whose school/childcare provider is closed, that employee will be eligible for EPSL and may also be eligible for Expanded FMLA.

Employers that provide FFCRA required EPSL and/or Expanded FMLA are eligible for reimbursement of the costs of that leave through refundable tax credits.  Examples of the credits are included in the guidance at  https://www.dol.gov/newsroom/releases/osec/osec20200320.

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