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Reopening California: A Guide for Employers

By Julie M. Capell, Jeffrey S. Bosley, and Aaron N. Colby
05.18.20
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As businesses begin to reopen with more to follow in a phased process, federal, state, and local laws issued in response to COVID-19 continue to proliferate and create unique challenges for employers. This reference guide is designed to provide a framework for California employers to work through the issues they will face as they reopen their workplaces, including:

  • When and how businesses may reopen;
  • Pay and benefits issues; and
  • New COVID-19-specific workplace safety standards.

The guide provides an overview of new and key issues, considerations employers must make, options employers may have, and a brief summary of new substantive laws or standards.

Each employer's return-to-work plan may be unique and tailored. Employers should continue to monitor applicable, industry-specific guidance at the federal, state, county, and city levels as they prepare to reopen and as long as this pandemic persists. 

Rehiring/Returning to Work

  • A. When and how should we bring employees back?
    • 1. Take note of the shelter-in-place order(s) applicable to your operations, and keep in mind that reopening will be phased (and that there is a possibility of renewed shutdowns).
    • 2. Review and analyze workplace safety requirements. A number of cleaning, social-distancing, and other operating requirements have been created to ensure continued worker safety upon reopening. These will need to be implemented on or before the return of employees and could impact when an employer decides to reopen.
    • 3. Provide reasonable advance notice of returning to work and obtain written acknowledgment from employees of intent to return.
    • 4. Create deadlines for selected rehires to return to work. Prepare a protocol for what to do if an employee does not return timely (i.e., provide a grace period or count as automatic voluntary resignation/job abandonment) and apply it consistently.
    • 5. Consider staggering return-to-work dates to give you an opportunity to assess whether your onboarding or training process and your social distancing protocols will work and what adjustments may need to be made.
    • 6. Consult our checklist for employers planning to reopen or return to the workplace for guidance on all reopening issues and logistics here.
    • 7. Consider if the job is different from before and whether to include a return to work written notice setting forth the new duties, schedule, and pay, including if the position is reclassified from exempt to non-exempt.
    • 8. Consider continuing telework for all or part of employees' schedules where possible, especially for those who will be required to take public transit or those that are in high-risk groups or are not comfortable returning to the workplace at this time.
    • 9. Consider implication of Governor Newsom's Order concerning presumption of workers' compensation coverage for employees who are diagnosed or test positive for COVID-19 within 14 days of leaving their home to work. Our advisory on this issue is here.
    B. How do we choose who to rehire?
    • 1. Start by determining which positions or functions are needed most immediately and how many employees will be needed initially to fill each of those functions.
    • 2. From there, the employer should design a fair, consistent and nondiscriminatory selection process which could be based on a variety of documented nondiscriminatory factors such as tenure or an assessment of the organization's future needs and who is best qualified to meet those needs. These reasons are facially neutral and easier to defend versus performance or other subjective reasons.
    • 3. Document the process you use in a spreadsheet so you can show how you went about it.
    • 4. Certain jurisdictions may have specific requirements relating to rehiring workers whom they have laid off due to COVID-19. For example, the City of Los Angeles recently enacted an ordinance requiring employers in certain industries (airport, commercial property, event center, and hotels) that generated more than $5 million in business in 2019 to rehire laid-off workers (giving priority to those with the most seniority) before they can hire any new employees. Others, including Oakland, California, are considering similar requirements.
    • 5. For employees covered by a collective bargaining agreement, the employer must review the terms of the applicable agreement.
  • C. What are considerations in onboarding employees?
    • 1. Have new hires sign new hire documents, including any applicable Federal Arbitration Act (FAA) arbitration and class action waiver agreements.
    • 2. Consider whether the employee should execute a new Form I-9.
    • 3. Review benefit plans to determine coverage differences related to returning employees. See our blog post here.
    • 4. Virtual onboarding procedures should comply with all the statutory requirements of California's Uniform Electronic Transactions Act (CUETA) and the Federal E-SIGN Act.

Continued Remote Working

  • A. If employees continue working from home, what steps should be taken to minimize wage/hour risks?
    • 1. Continue to monitor employees, especially non-exempt employees, who are working from home to ensure accurate time records are maintained, and avoid claims for unpaid time or missed meal and rest period periods.
    • 2. Non-exempt employees must be compensated for all hours worked, which means employees must track all compensable time and avoid working "off the clock." This includes time that is worked remotely, even if the employee did not have express permission to work from home.
    • 3. Employers who require employees to use personal devices for work related reasons must reimburse those employees for that use.
    • 4. Create clear telework/remote working policies. Those policies should incorporate the wage and hour considerations noted above as well as other expectations of employees who are working from home – e.g., how often employees can telecommute, how employees should be communicating with their managers, and maintaining safety, security and confidentiality of equipment and data.

      Where applicable under state or local law, the policy should also include expense reimbursement provisions. The best practice is to reimburse a reasonable portion of an employees' use of personal cell phone, internet, and office supplies, with a way to submit additional expenses and a cap on spending. See our blog post here.
    • 5. Consider having employees who are working from home – either part time or full-time – sign remote work or teleworking agreements that incorporate the telework/remote working policy.
    • 6. Consider revising job descriptions to clarify which jobs or positions are generally "eligible" for remote work and which will not be eligible for remote work (unless an employee requires teleworking as a reasonable accommodation).
  • C. Unemployment insurance
    • 1. If the employee has been collecting unemployment insurance (UI), must the employer advise the EDD that the employee has returned to work?
      • a. Sometimes. Report all of their new or rehired employees working in California to the New Employee Registry within 20 days of their start of work date. For the purpose of the Registry, any employee rehired after a separation of at least 60 consecutive days must be reported within 20 days of the start of work date, which is the first day of work.
      • b. Otherwise, employees who have approved UI claims have to certify their benefits every two weeks. Employees are legally responsible for reporting work and wages correctly.
    • 2. If the employee is only partially reinstated, will he/she still be eligible for UI benefits? Will he/she be eligible for CARES Act UI benefits, too?
      • a. CARES Act UI Benefits (see our prior blog on this topic here)
        • 1. Unemployment Assistance (PUA) – Program for certain workers who would not otherwise qualify for regular UI benefits: depending on the worker's individual circumstances, a worker receiving PUA benefits may still qualify for partial benefits if partially reinstated. If a worker is partially reinstated and able to return to work, however, it is likely that the worker no longer meets one of the eleven PUA eligibility criteria and, therefore, would likely not be eligible for additional PUA benefits.
        • 2. Pandemic Emergency Unemployment Compensation (PEUC) – Program providing an additional 13 weeks of UI benefits: yes, if the worker is in a state that provides for partial unemployment benefits, the worker is entitled to the additional 13 weeks of UI benefits after the exhaustion of regular UI benefits.
        • 3. Pandemic Increase in Unemployment Compensation (PIUC) – Program currently providing an additional $600 per week in UI benefits through July 31, 2020: yes, if the worker is in a state that provides for partial unemployment benefits, the worker is entitled to the additional $600 per week increase in benefits so long as the worker is eligible for at least $1 per week in regular UI benefits.
      • b. California
        • 1. Maybe. An employee who is partially reinstated may still be eligible for state UI benefits if working less than his/her usual hours and if his/her weekly wages minus $25 or 25 percent, whichever is greater, are less than $450 per week.
        • 2. The employee must continue submitting biweekly UI claims, reporting hours worked and wages earned.
  • D. Reinstatement of tenure and leave benefits
    What happens to an employee's leave rights after a break in service?
    • 1. Family Medical Leave Act (FMLA)/California Family Rights Act (CFRA). Employee eligibility: works at site with 50 or more employees within 75 miles; employed by same employer for at least 12 months; worked at least 1,250 hours during prior 12 months for employer; 12 months of employment do not need to be consecutive months. Exception is that breaks in service of seven years or more are not counted.
    • 2. Families First Coronavirus Response Act (FFCRA). To be eligible for the Emergency Family Medical Leave Expansion Act (EFMLEA) under the FFCRA, an employee must have been: on the employer's payroll for 30 calendar days immediately prior to the date the employee's leave would begin; or laid off or terminated by an employer on or after March 1, 2020, rehired or otherwise reemployed by the same employer on or before December 31, 2020, and had been on the employer's payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off or otherwise terminated.
  • E. Must an employer reinstate an employee's accrued vacation upon return to work?

    No, unless required by employer policy or by agreement, or unless a global PTO policy includes protected sick leave.

  • F. Must an employer reinstate any sick leave that the employee had earned prior to layoff?
    Previously accrued and unused paid sick days must be reinstated if an employee leaves employment and then is rehired within one year. Upon rehire, the employee must be allowed to use those previously accrued sick days and to begin accruing additional paid sick days.

Workplace Safety

  • A. Know the standards for the industry and jurisdiction (Federal, State, County, City)
  • B. State and county public health department orders impacting return to work
    • 1. The Public Health Department Orders – also known as "shutdown" "shelter in place" and "safer at home" orders – often include requirements for workers at "essential" businesses, even those that are not open to the public. Face coverings, hand washing, social distancing protocols, notices to employees, and workplace posters, are the most frequent.
    • 2. Determine which local public health department applies to the worksite. The health department order will determine specific responses required when there is a possible or actual COVID-19 exposure in the workplace. Here are the local departments of public health in California, which are usually by county.
    • 3. Many cities, like Los Angeles and San Francisco, have public health orders as well.
  • C. COVID-19 mitigation plan
    • 1. Federal OSHA does not mandate a written transmission prevention plan specifically targeted at COVID-19. However, employers of workers with potential occupational exposures to COVID-19 (that is, working conditions that might cause transmission as opposed to community conditions that might cause transmission outside of the working environment) are expected to follow these practices:
      • a. Assess the hazards to which the workers may be exposed.
      • b. Evaluate the risk of exposure.
      • c. Select, implement, and ensure workers use controls to prevent exposure, including physical barriers to control the spread of the virus; procedures to reduce the risk of transmission in the workplace (for example, social/physical distancing); and appropriate personal protective equipment, hygiene, and cleaning supplies.
      • d. These concepts are in line with usual occupational safety and health protocols that federal OSHA and the state-plan counterparts require employers to follow regarding any safety and health hazards to which workers are exposed. Their application in the context of COVID-19, however, likely calls for most employers to revise and enhance safety programs that existed prior to the pandemic outbreak.
    • 2. Cal-OSHA states that, "California employers are required to establish and implement an IIPP (title 8 section 3203) to protect employees from workplace hazards, including infectious diseases. 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."
  • D. Safety and health communications plan
    • 1. Employers are required not only to have an occupational safety and health program but must also be able to demonstrate that it is effective in practice, which means including a communication plan and creation of a safety culture. In relation to reopening their businesses, employers should strongly consider developing a communications plan around COVID-19 workplace safety that is more comprehensive and visible than usual, both to reinforce the importance of worker safety and to reassure employees and customers that the employer is taking it seriously and has a plan.
    • 2. Safety and health communication plan components may include:
      • a. Increased signage;
      • b. Employee safety meetings;
      • c. Safety training;
      • d. Periodic reminders concerning proper hygiene practices;
      • e. Auditing to make sure that safe distancing requirements are being observed; and
      • f. Prompt response to employee safety concerns.
  • E. Physical distancing
    • 1. Implement physical distancing requirements or guidelines that remain in existence on federal, state, and local levels. This may require:
      • a. Reconfiguring internal work spaces, traffic patterns, schedules, and staffing levels.
      • b. Flexible scheduling not only with regard to the workday (to reduce the number of employees present at any one time), but also to shift some workers to a different workweek that includes Saturdays or Sundays (when the worker might have had a Monday through Friday schedule previously).
      • c. Staggering break times.
      • d. Setting up job rotations so that each worker operates remotely one or two days a week (when possible), thus reducing the complement of on-site workers on any given day.
    • 2. Discourage employees from sharing equipment and devices and institute protocols for handling, cleaning, and sanitizing equipment that must be shared.
  • F. Physical barriers
    Consider erecting physical barriers and controlling the number of employees who can access a particular area or workspace.
  • G. Personal hygiene: hand-washing and hand sanitizer
    • 1. Remind workers (using posters, intranet sites, and other company communication channels) to frequently wash hands or, if soap and running water are not available, use an alcohol-based hand rub.
    • 2. Have adequate supplies of soap and alcohol-based hand rub available.
  • H. Screening/monitoring
    • 1. Most employers will voluntarily screen or be expected to screen employees in some fashion prior to initially restarting work.
    • 2. At a minimum, this will require notifying employees that they cannot come into work if they have symptoms of illness.
    • 3. Regularly monitor whether employees experience illness symptoms, for example, before each workday, throughout the day, or at some other interval.
    • 4. Temperature-taking is permitted but should assess the following:
      • a. Keep records to demonstrate effort to protect workforce/clients/vendors.
      • b. Records must be kept confidential under ADA and any state/local laws pertaining to employee medical records (this includes not letting employees see their co-workers' information, such as on a "sign-in sheet" record, and being careful that employees who register a fever are dealt with in a way that others in line hopefully will not automatically know they have a fever, such as by taking temperatures in private locations).
      • c. Processes should be designed or reviewed by someone competent to identify hazards to the temperature-taker(s) and employees' whose temperatures will be taken (i.e., someone with appropriate medical or scientific background).
      • d. Appropriate personal protective equipment must be used in the process.
      • e. Proper sanitizing procedures for equipment (if necessary) should be followed.
      • f. Employees who take the temperatures should be trained in the proper procedures (and the training needs to be documented).
      • g. Establish process for removing feverish employees and notifying exposed co-workers in the event employee tests positive.
      • h. The same general principles apply for COVID-19 testing.
      • i. Assess obligation to comply with the HIPAA.
      • j. Assess compliance with the CCPA. See our blog post here.
  • I. Workplace cleaning and sanitizing
    • 1. More frequently and thoroughly clean and disinfect all work areas, surfaces, restrooms, common areas, and shared equipment.
    • 2. If the employer relies on in-house staff to conduct disinfecting and cleaning, the employer must ensure that such staff is qualified and properly trained to perform such services and have appropriate personal protective equipment (PPE), cleaning materials and supplies, and safety training, including familiarization with possible chemical hazards.
    • 3. If the employer relies on an outside contractor for such services, the employer will want the contractor to verify its competency and compliance with the foregoing practices.
    • 4. If the employer is a tenant, the employer should confirm with its landlord or the landlord's property manager that the level of custodial services will be tailored to the COVID-19 environment.
  • J. Personal protective equipment
    • 1. Assess the extent to which personal protective equipment (masks, gloves, facial shields, and other protective gear) is appropriate to the hazards a worker can be anticipated to encounter, while keeping in mind any government guidance or mandates regarding the preserving or reserving of certain kinds of equipment for medical and emergency personnel.
    • 2. The employer needs to be sure that it has adequate supplies of PPE to provide to workers and has trained workers on when and how to safely use PPE, when to change PPE, and how to dispose of PPE.
    • 3. Be prepared for employees to request PPE in situations where the hazard analysis and best practice guidelines do not indicate that PPE is required.
    • 4. Consider allowing employees to utilize PPE for comfort or convenience reasons (i.e., employee relations) unless it would create an undue expense or business disruption, or if using the PPE would itself create a hazard (such as an improperly fitted N95 or other respirator mask).
    • 5. In some cases, an employee may request to use personal PPE in lieu of employer-provided PPE. Because such requests may require the employer to evaluate the efficacy and suitability of the substitute (including testing to be sure it is not contaminated), we generally discourage employers from allowing this option, absent specific government guidance to the contrary.
  • K. Clients, customers, and visitors
    • 1. We anticipate that there will likely be restrictions on the presence of clients, customers, visitors, or other non-employees both as an occupational safety and health requirement and a public health consideration. Obviously, many businesses (such as hospitality and retail) that are not currently operating can only reopen successfully if they are allowed to have customers or clients present in the work area. Other businesses may be able to reopen successfully with little or no physical presence of clients, customers, or visitors.
    • 2. Consequently, the guidelines and restrictions when members of the public or third-parties are present may vary by industry and occupation as well as geography. Nonetheless, it is a consideration that nearly every employer that is allowed to reopen will have to deal with in evaluating potential workplace hazards and designing and implementing practices to protect its employees from transmission of COVID-19 in the workplace.
  • L. Training
    • 1. Consider implementing training for all supervisors on communicating and enforcing compliance with the above and how to deal with employee questions, including whether all questions should be directed to a specific resource or person for consistency.
    • 2. Document notices and trainings with employee acknowledgments even when not required by law, as evidence to combat claims of lack of safety.

Labor Considerations

  • A. Consider recall rights
    • 1. Refer to the Collective Bargain Agreement (CBA) to determine if there are recall requirements based on seniority, as well as requirements with respect to scheduling and notice requirements.
    • 2. If not expressly discussed by the parties' CBA, the employer may be required to maintain a pre existing policy or past practice.
    • 3. If the employer wants to change the status quo or implement a new policy, the union must be given notice and an opportunity to bargain. See our blog post here.
  • B. If you are considering requiring medical verification documents:
    • 1. Refer to the CBA to determine if there are waivers of the union's right to bargain over the implementation or effects of adoption of medical verification requirements.
    • 2. If not covered by a CBA, determine if a policy or practice currently exists.
      • a. If the policies are broad and do not cover specific diagnoses, determine if a sufficient change to the status quo needs to be made that would require notice to the union and an opportunity to bargain.
      • b. Be aware that a union may also seek to bargain over the effects of any such policy, especially if the employer applies stricter guidelines than the CDC or other applicable health and safety guidelines.
  • C. If you are considering implementing new requirements, such as taking the temperature of returning employees and/or asking about exposure to COVID-19:
    • 1. Refer to the CBA to determine whether they allow the employer to unilaterally implement these tests or inquiries without prior bargaining. Regardless, the employer should provide impacted unions with notice and the opportunity to discuss the changes.
    • 2. While the NLRA does not prohibit non invasive temperature tests or asking employees about potential exposure or symptoms where allowed or required by federal, state, or local law, a unionized employer may have the obligation to bargain over the decision to implement these measures.
    • 3. Consider whether there is a need to bargain with any unions regarding any additional changes, such as changes to workplace health and safety protocols.
  • D. Determine a protocol for situations of an employee refusing to return to work based on fear of exposure.
    • 1. Refer to the CBA, specifically the management rights, no-strike provisions, work rules, and health and safety provisions, as well as the "just cause" provision to determine if the employer is limited from disciplining or terminating the employee for refusing to perform unsafe or unhealthful work.
    • 2. Use caution, as the employee's refusal to return could potentially constitute protected concerted activity under the NLRA.
  • E. Determine a protocol for situations where an employee refuses to perform certain functions of their jobs based on fear of exposure.
    • 1. Refer to the CBA, specifically the management rights, no-strike provisions, work rules, and health and safety provisions, as well as the "just cause" provision to determine if the employer is limited from disciplining or terminating the employee for refusing to perform unsafe or unhealthful work. Review the no strike provision.
    • 2. Use caution, as the employee's refusal to perform certain functions of their jobs could potentially constitute protected concerted activity under the NLRA, Section 502 of the Labor Management Relations Act, and potentially OSHA.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.

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