FOURTH AND LONG

California’s Employer Playbook For a Safe Reopening

After four months of various degrees of “stay home,” “safer at home,” and “shelter in place,” California offers its Covid-19 Employer Playbook for a Safe Reopening (July 24, 2020), an attempted comprehensive “guidance” for limiting workplace infection as the pandemic wears on.

“Guidance” suggests recommendations, not the direct force of law.  However, the piece cross-references and supplies links to many COVID-inspired mandatory statewide and municipal health and safety standards. Management should thus read and apply the Playbook conscientiously.

Such close study will confirm the need for experienced legal counsel to assist an employer with the critical balancing between individual employee privacy rights and employer responsibility to protect the wider workforce and public from infection in these remarkable times.

Citing the state’s Industry-Specific Guidance and Checklists – covering particular pandemic considerations for 29 business sectors (now updated through July 30, 2020) — the Playbook specifies the six needed actions for all employers. All facilities must:

“1. Perform a detailed risk assessment and create a work site-specific COVID-19 prevention plan

“2. Train workers on how to limit the spread of COVID-19. This includes how to screen themselves for symptoms and when to stay home

“3. Set up individual control measures and screenings

“4. Put disinfectant protocols in place

“5. Establish physical distancing guidelines

“6. Establish universal face covering requirements (with allowed exceptions) in accordance with CDPH [Cal. Dept. of Public Health] guidelines …”

Anticipating trouble, Playbook Appendix A offers employer approaches to enforcing workplace mask requirements including: ● training workers on how to minimize workplace violence and to get support “when de-escalation efforts are unsuccessful”;  ● with respectful posture and expression, speak to non-complying employees with calm voice at normal volume; and ● “settle on a method for calling in support from security or law enforcement if needed.” Again, remarkable times.

Offering nothing to clarify the ill-defined boundary between the privacy rights of a COVID-19 symptomatic employee and the need to prevent a company-wide outbreak, the Playbook instead  simultaneously advises management:

● should cooperate with the local health department (LHD) by reporting a known or suspected employee infection and by sharing “a roster of all employees with the LHD” and should also “notify all workers who were potentially exposed”; but

● “must maintain confidentiality of employees with suspected or confirmed COVID-19 infection when communicating with other employees.”

Also touching the limits of employee privacy against public health interests, the volume cites required compliance with Cal/OSHA’s (Cal. Occupational Health and Safety Administration) Recording and Reporting Requirements for COVID-19 Cases.

On the appropriate Cal/OSHA form, employers must keep a record of any “work-related COVID-19 fatality or illness,” including any employee displaying pandemic-related symptoms who has spent “days away from work.” Thus, a positive COVID-19 test is not a prerequisite for logging an employee absent for “days” (how many is undefined) with a fever. Cal/OSHA recommends “erring on the side of recordability.”

Cal/OSHA also requires employers to report “serious illness, serious injury or death of an employee that occurred at work or in connection with work within eight hours of when [management] knew or should have known of the illness.” The agency states that “serious illness includes, among other things, any illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization for other than medical observation or diagnostic testing.”

The question thus arises: how does an employer determine whether an unfortunate worker requiring COVID-19 hospitalization contracted the illness at work or in any other manner connected with that employment.  Best practice, again, would be to “err” on the side of reporting.

While the Playbook undertakes to cover the waterfront of COVID-19 related workplace issues, it also underscores an employer’s need to issue thorough pandemic-related policies and protocols and to address any employee infection promptly and with care and proper documentation. The help of skilled legal counsel is thus a good idea here.

See also:

For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles

July 31, 2020

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