RETURN TO WORK – EMPLOYER DO’S AND DON’TS...The Governor’s Resilience Roadmap • • We are...

RETURN TO WORK – EMPLOYER DO’S AND DON’TS

Marie Burke Kenny Brook Taylor Barnes Thursday, May 28, 2020

© 2020 Procopio, Cory, Hargreaves & Savitch LLP

Agenda • The Resilience Roadmap – The San Diego“Variance” • Return To Work Protocols And Documentation • Absences From Work and Refusals to Work • COVID Workers’ Compensation Coverage • Reasonable Accommodations • Anticipated Litigation • Practical Tips

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The Governor’s Resilience Roadmap • https://covid19.ca.gov/roadmap/ • We are now in early Stage 2, where

retail, related logistics and manufacturing, office workplaces, limited personal services, outdoor museums, child care, and essential businesses can open with modifications starting with:

• Retail • Manufacturing • Offices (when telework not possible) • Outdoor Museums • Limited Personal Services

• Variance: The state has approved San Diego County to move farther into Stage 2, allowing in-person customers at restaurants and retail businesses, with modifications. Businesses need to follow guidance, complete and post safe reopening plans.

• https://www.sandiegocounty.gov/coronavirus.html – Dine-in restaurant reopening plan – In-store retail business reopening 2

https://covid19.ca.gov/roadmap/

https://www.sandiegocounty.gov/coronavirus.html

https://www.sandiegocounty.gov/coronavirus.html


San Diego County - Safe Reopening Plan • Teleworking opportunities have been

maximized.

• Employees instructed to stay home if sick.

• Employees undergo temperature checks

– Excluded > 100 degrees

• Employees wear facial coverings in the workplace if within 6 feet of others.

• Break rooms, bathrooms, and common areas disinfected on a frequent schedule.

• Personal Protective Equipment (PPE) has been provided at a level appropriate to employee job duties.

• Hand washing promoted and soap and water are available to all employees. – No soap? provide alcohol-based

sanitizer containing at least 60% alcohol.

• Signs posted requiring 6ft physical distancing and prohibiting unnecessary physical contact.

• Signs posted encouraging pedestrian traffic to follow one-way migration paths.

• 6ft separation markings for any areas of congregation to keep people physically separate.

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https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiology/covid19/Community_Sector_Support/BusinessesandEmployers/SafeReopeningPlanTemplate.pdf

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Return To Work Protocols • Who can return and when • Remote work, rotating remote work or staggered schedules • Floor planning • Testing and screening • Personal protective equipment • Increased sanitation • Social distancing • Employee training before return • Travel restrictions • Monitor local health orders 5


Return To Work: Who, When and What • Who: Workers desiring to return to the workplace

– Maximize telework or remote work – Encourage workers who are over 65, immuno-compromised or isolating

under doctor’s orders to remain home – What about workers with young children?

– Beware disparate impact/discrimination claims

– Beware failure to accommodate/retaliation claims • When: The Governor and County allow it

• What: To facilitate social distancing, use rotating remote work schedules or staggered work schedules

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Return To Work Documentation • Provide notice of reduced pay or hours • Identify staggered work schedules • Provide notice of temperature checks or

other testing /screening – Note: Comply with the California

Consumer Privacy Act of 2018 (CCPA) if applicable

• Enclose mandatory safety policies • Consequences of non-compliance

• Enclose of any testing policies – Identify consequence of failures/refusals

• Provide notice of medical documentation required to facilitate return to work (if any)

• Identify any opportunity for antibody testing – Provide consent and release agreement

• Require return of equipment or supplies used during remote work – Address expense reimbursement

• Reiterate prohibition against workplace violence*

• Reiterate at will employment • Provide notice of timekeeping issues

– Compensable time for temperature checks

– Reporting time pay? • Update IIPP with COVID-specific policies 7


Testing and Screening • Screening

• Employers may ask if employee has been exposed

• Employers may ask if employee has COVID symptoms

• Medical testing

– Temperature checks (not dispositive but presumptive)

– EEOC permits antibody tests (DFEH has not provided guidance)

– COVID-19 tests? (limited utility but required for certain industries)

– Self reporting

• Medical information must be kept confidential under the ADA, FEHA, CMIA, CCPA and the California Constitution

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Testing and Screening Challenges • Any time spent by hourly employees waiting in line to

be screened or tested is compensable time and must be “on the clock”

• Consent - use a voluntary consent form prior to antibody or COVID testing

– Ensure no disclosure of private test results

– Temperature checks?

• No records – pass/fail

– Reporting time pay for employees who fail a temperature check

• Confidentiality: Avoid liability under the CCPA and CMIA

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Personal Protective Equipment • OSHA identifies four risk categories for worker exposure:

1. Very High (examples include health care workers and morgue workers who have been in contact with known or suspected sources of COVID-19);

2. High (examples include health care delivery and support staff, and medical transport workers);

3. Medium (frequent and close contact, like grocery store workers); and

4. Lower Risk OSHA believes that most workers will fall into the Low and Medium risk categories. OSHA’s guidance also provides recommended types of controls for each level of exposure.

Guidance: “Employers are obligated to provide their workers with PPE needed to keep them safe while performing their jobs. The types of PPE required during a COVID-19 outbreak will be based on the risk of being infected [with COVID] while working and job tasks that may lead to exposure.”

Minimum Standard: Facial coverings will be required if workers are within 6 feet of each other.

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Social Distancing and Sanitation • Post signs requiring everyone to observe

social distancing (6 feet) at all times • Require employees to observe

handwashing protocol • Provide soap and hand sanitizer • Separate work areas and tables in break

room by 6 feet • Stagger meal and rest breaks to facilitate

social distancing • Require masks to be worn while working

or walking in open areas • Require one directional foot traffic flow • Restrict elevator use to 1 person at a time

• Adopt frequent and enhanced cleaning protocols with EPA-approved disinfectants for pathogens

• Provide gloves and disinfectant wipes in common areas and near shared office equipment

• Provide disinfectant wipes for employees to wipe down individual work areas

• Provide disposable kitchenware and utensils that must be discarded after use

• Discontinue use of ice machines • Install barriers for employees required to

interact with public (reception)

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FAQ’s Question: Frequency of Temperature Checks: Is a temperature screening required every time an employee enters the workplace or only at the time the employee first reports to work for their work day? For instance, if an employee leaves to take a meal period, does the employee have to be re-checked upon re-entry? Question: Whether an Employee May Self-Screen: Is an employer required to take the employee’s temperature or may an employee take their own temperature and certify to the employer that they do not have a temperature over 100 degrees? Question: When Face Coverings are Required: Is an employee required to wear a face covering at work even if no one else is around? Does this include the period of time an employee is working alone in an office with his/her office door completely closed?

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Cal OSHA Guidance • Aerosol Transmissible Diseases (“ATD”) Exposure

Control Plan • Hospitals, skilled nursing facilities, clinics, medical offices, outpatient medical facilities,

home health care, long-term health care facilities, hospices, medical outreach services, medical transport and emergency medical services.

• Laboratories, public health services and police services that are reasonably anticipated to expose employees to an aerosol transmissible disease.

• Correctional facilities, homeless shelters, and drug treatment programs.

• Coroner’s offices, mortuaries, funeral homes, and other facilities that perform aerosol generating procedures on cadavers.

• Any other locations when Cal/OSHA informs employers in writing that they must comply with the ATD Standard.

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Cal OSHA Guidance -IIPP • Injury and Illness Prevention Program (IIPP) • All California employers must have one in place

• Employers are required to determine if COVID-19 infection is a hazard in their workplace.

• If it is a workplace hazard, then employers MUST implement infection control measures, including applicable and relevant recommendations from the Centers for Disease Control and Prevention (CDC), Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), and Coronavirus Disease 2019 (COVID-19): How to Protect Yourself & Others.

• For most California workplaces, adopting changes to their IIPP is mandatory since COVID-19 is widespread in the community.

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https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecific-groups%2Fguidance-business-response.html

https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecific-groups%2Fguidance-business-response.html

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html


Overlapping Government Guidance on Workplace Procedures

• Center for Disease Control Guidance

https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

• U.S. Department of Labor, “Guidance on Preparing Workplaces for COVID-19 https://www.osha.gov/Publications/OSHA3990.pdf

• Cal/OSHA Interim Guidelines for General Industry on 2019 Novel Coronavirus Disease https://www.dir.ca.gov/dosh/coronavirus/General-Industry.html

• DFEH Employment Information on COVID-19

https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf

• OSHA workplace guidance

• https://www.osha.gov/Publications/OSHA3990.pdf

• All types of PPE must be:

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https://www.osha.gov/Publications/OSHA3990.pdf


Why does it matter what the agencies say?

• Establish consistent policies and practices based upon guidance so you can: – Provide consistent directives to employees; – Have a written resource employees can follow; – Defend against future litigation based upon your good faith

effort in following guidance.

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Absences from Work • Emergency Paid Sick Leave (COVID-PSL) • Extended Family and Medical Leave (EFMLA) • Unpaid Leave • Refusal to work • COVID Workers’ Compensation Coverage

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Families First Coronavirus Response Act • Applies to private employers with 500 or fewer employees

• Effective – April 1, 2020 – December 31, 2020

• Emergency Paid Sick Leave (COVID-PSL)

– Up to 80 hours of COVID-PSL

• 100% pay for employee COVID reason (illness or quarantine) ($5,110 cap)

• 2/3 of pay for employee caring for another ($2,000 cap)

• Extended Family and Medical Leave (EFMLA)

– Up to 12 weeks of EFMLA – 2/3 pay* ($10,000 cap) when eligible**

• *First 2 weeks are unpaid and **employee must have been employed for 30 days

– Employee unable to work or telework because employee needs to care for child during COVID-related school closures

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Unpaid Leave • Employers may provide unpaid leave as a reasonable accommodation for

any employee suffering a COVID related medical concern that does not qualify for other leave.

• If employee self-identifies a medical condition which could be defined as a disability under the ADA, the employer may ask for physician’s certification to return to work.

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Refusal to Return to Work • Is fear a valid reason to refuse to return to work or insist on remote work

or telecommuting. • Allow employees to communicate their reasons for not wanting to return

to work. • Ensure that a qualifying reason for COVID-19-related paid sick leave or

an underlying ADA-protected disability is not the reason for refusal. • Ensure that the employer’s working conditions are not the reason for

refusal. • Set reasonable timelines for returning to work, taking or unpaid leave, or

job abandonment.

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Reasonable Accommodation • ADA and FEHA Compliance • Identify at risk employees • Determine if physical presence is necessary

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Compliance With Disability Accommodation Laws

• The ADA and FEHA protects employees with known or suspected disabilities that make them vulnerable to COVID-19.

• Preexisting conditions such as asthma, heart conditions, diabetes, and immune disorders may require accommodation.

• While age is not an ADA protected condition medical conditions associated with older age may be.

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Identify and Engage in Good Faith • Invite employees to bring their concerns to an identified human

resources/company representative; • Consider all paid and unpaid leave options for the employee who refuses

to work; • Determine if remote work is feasible and institute remote work

agreements; • Remain flexible when possible

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Executive Order N-62-20 Workers’ Compensation Coverage For COVID-19

• Signed: May 6, 2020 • Covered Dates: March 19, 2020 through July 5, 2020 • Presumption: Any COVID-19 related illness of an employee is presumed to be

qualify for workers’ compensation benefits if: – The employee tested positive for or was diagnosed with COVID- 19 within 14

days after a day that the employee worked at the employer's direction; – The work was performed at the employer’s direction on or after 3/19/20; – The place of employment was not the employee’s home – The diagnosis was done by a licensed California physician and the diagnosis is

confirmed by further testing within 30 days of the date of the diagnosis.

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COVID-19 Workers’ Compensation Coverage Dispute: The presumption is disputable if controverted by other evidence within 30 days of a claim. COVID PSL: Where an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits shall be used and exhausted before any benefits are due and payable. Application to Insurance Carriers: This Order applies to all workers' compensation insurance carriers writing policies that provide coverage in California, self-insured employers, and any other employer carrying its own risk, including the State of California. Premium Costs: Nothing in this Order limits the existing authority of insurance carriers to adjust the costs of their policies. 25


Anticipated Litigation • Wrongful termination – retaliation for whistleblowing regarding safety; • Failure to provide a safe work environment; • Discrimination or harassment (age, race, disability or COVID-stereotypes); • Failure to provide COVID-PSL or EFMLA pay; • Failure to provide reasonable accommodations; • Failure to provide WARN notifications – extended furloughs or layoffs; • Wage and hour class action and PAGA action claims;

– Failure to reimburse expenses incurred for remote work; – Unpaid wages for temperature checks, auto clocking remote employees etc; – Missed meal/rest periods while working at home (shakes head).

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Case Examples • Verhines v. Uber Technologies Inc. (California)

• Class action seeking an injunction requiring Uber to classify all drivers who work in California as employees, rather than independent contractors, and to provide paid sick leave pursuant to California statute.

• Rogers v. Lyft – (California) Class action alleging defendant failed to provide paid sick leave despite the spread of COVID-19, resulting in the drivers feeling compelled to continue working even if they feel ill.

• Siers v. Velodyne Lidar Inc. (California) Class action alleging employer unlawfully terminated 140 employees with one day’s written notice and misrepresented that layoffs were due to COVID-19.

• Alaska State Employees v State of Alaska (Alaska) Class action alleging employer failed to allow adequate social distancing, teleworking, teleconferencing and modification of work spaces, provide appropriate personal protective equipment to protect employees interacting with the public, and follow CDC guidelines by allowing more than ten people to work together in small spaces.

• Olsen v. Ratner Companies (New Jersey) Collective action alleging violation of FLSA for alleged failure to pay for employees after the shutdown from the COVID-19 pandemic.

• Scott v. Hooters III Inc. (Florida) – class action alleging defendant terminated plaintiffs and without providing required advance written notice under the WARN Act.

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Practical Tips/Takeaways Regular and transparent communication Establish a realistic return to work schedule Consider operational needs Establish a return to work safety plan Require return to work documentation Be proactive and flexible Be empathetic in communicating with employees

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Resources for CARES Act • PPP Application Form

https://www.sba.gov/document/sba-form--paycheck-protection-program-ppp-sample-application-form

• SBA Guidance

https://home.treasury.gov/system/files/136/PPP--IFRN%20FINAL.pdf

• Employee Retention Credit FAQs

https://www.finance.senate.gov/chairmans-news/cares-act-employee-retention-credit-faq

• EIDLs

https://www.sba.gov/funding-programs/disaster-assistance

• EDD resource for Pandemic Unemployment Assistance Program

https://www.edd.ca.gov/about_edd/coronavirus-2019.htm 29





https://www.finance.senate.gov/chairmans-news/cares-act-employee-retention-credit-faq

https://www.sba.gov/funding-programs/disaster-assistance

https://www.edd.ca.gov/about_edd/coronavirus-2019.htm


Resources (FFCRA)

• US Department of Labor (FFRCA FAQs)

https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

• US Department of Labor (FFRCA Poster)

https://www.dol.gov/agencies/whd/posters

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https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

https://www.dol.gov/agencies/whd/posters


Resources (Health Guidance and Executive Orders) • Centers for Disease Control – Interim Guidance for Businesses and Employers

https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

• California Governor’s Executive Orders

https://www.gov.ca.gov/category/executive-orders

https://covid19.ca.gov/stay-home-except-for-essential-needs/

• Department of Public Health Guidance Documents

https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Guidance.aspx

• Check local county’s department of public health for current versions of individualized orders. Face covering order below:

•https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiology/covid19/Addendum_regarding_face_coverings_and_public_parks.pdf

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https://www.gov.ca.gov/category/executive-orders













https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Guidance.aspx

https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiology/covid19/Addendum_regarding_face_coverings_and_public_parks.pdf

https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiology/covid19/Addendum_regarding_face_coverings_and_public_parks.pdf


Resources (Wage & Hour Issues) US Department of Labor (Wage and Hour FAQs)

https://www.dol.gov/agencies/whd/flsa/pandemic

EDD (Unemployment Benefits)

https://edd.ca.gov/about_edd/coronavirus-2019.htm

California Labor Commissioner (Wage and Hour FAQs)

https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm

California Labor and Workforce Development Agency

https://www.labor.ca.gov/coronavirus2019/

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https://www.dol.gov/agencies/whd/flsa/pandemic

https://edd.ca.gov/about_edd/coronavirus-2019.htm

https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm

https://www.labor.ca.gov/coronavirus2019/


Resources (Workplace Safety & Medical) • OSHA Guidance on Preparing Workplaces for COVID-19


• Cal/OSHA Guidance on Requirements to Protect Workers from Coronavirus

https://www.dir.ca.gov/dosh/coronavirus/Health-Care-General-Industry.html

• EEOC Bulletin - What You Should Know About the ADA, the Rehabilitation Act, and COVID-19

https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

• DFEH Employment Information on COVID-19 (FAQ)

https://www.dfeh.ca.gov/

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https://www.dir.ca.gov/dosh/coronavirus/Health-Care-General-Industry.html




Thank you!

Marie Burke Kenny [email protected] 619.515.3876

Questions? Please feel free to contact us any time for guidance.

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Brook T. Barnes [email protected] 619-525-3810

RETURN TO WORK – EMPLOYER DO’S AND DON’TS...The Governor’s Resilience Roadmap • • We are...

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