Healthy Holidays – Employer Tips for Continuing Operations and Compliance as COVID Infections Rise

With COVID-19 infections increasing at alarming rates, employers are wondering how state and local restrictions will impact business operations. Below is a list of steps to help mitigate the spread of the virus, as we enter the holiday season.

Have a Plan

The California Occupational Safety and Health Standards Board (Cal/OSHA) adopted emergency regulations on COVID-19 prevention in the workplace.  The emergency regulations became effective on November 30, 2020 and require employers to have a written COVID-19 Prevention Program. According to Cal/OSHA, the Program must include a system for:

• Communicating information pertaining to COVID-19 with employees
• Identifying and evaluating COVID-19 hazards
• Investigating and responding to COVID-19 cases in the workplace
• Correcting COVID-19 hazards
• Training and instructing employees
• Ensuring physical distancing
• Ensuring proper use of face coverings
• Implementing engineering or administrative controls and personal protective equipment
• Reporting, recordkeeping, and providing access to information about COVID-19
• Removing COVID-19 infected and exposed workers from the workplace (including references to pay and seniority)
• Implementing criteria for employees to return to work after recovering from COVID-19

There are detailed requirements within each of the above bullet points. Employers should review the regulations carefully and ensure their existing plans are compliant.  See our blog Cal/OSHA’s New Employer Compliance re COVID-19.

Limit Exposure

As we enter the holiday season, employers should remind employees in advance that pursuant to the State of California’s travel advisory, employees are strongly encouraged to avoid travel outside of California. Employees who choose to engage in nonessential travel outside the State should quarantine for 14-days upon their return.

Take Action if Positive Tests or Potential “Close Contact” Exposures

1. Tell the Infected Employee to Isolate

Per Cal/OSHA’s regulations, employees who test positive for COVID-19 must isolate as follows:

• Those who tested positive for COVID-19 and have symptoms must isolate until:
  • At least 10 days have passed since their symptoms first appeared;
  • At least 24 hours have passed since a fever of 100.4 degrees or higher has resolved without the use of fever-reducing medication; and
  • Symptoms have improved

• Those who tested positive for COVID-19, but do not have symptoms must isolate for a minimum of 10 days from the date the employee’s specimen was collected for their first positive diagnostic (viral) test. If the employee subsequently develops symptoms while isolated, the employee must follow the above instructions.

If an employee is ordered to isolate by a local or state health official, the employee cannot return to work until either the period of isolation is completed, or the order is lifted. If no period was specified, then the period is 10 days from the time the order to isolate was effective.

2.  Close Contacts

Employees who have been in “close contact” with an infected individual must quarantine as required by the Los Angeles County Department of Public Health.  A “close contact” is any individual who was within six feet of an infected person for more than 15 minutes over a 24-hour period (while the person was infectious) or an individual who had unprotected exposure to an infected person’s body fluids and/or secretions (e.g., being coughed on or sharing utensils). A person with COVID-19 is deemed infectious from two days before symptoms first appeared or two days before they tested positive (for those without symptoms).

Per the County’s Order, those who have close contact with an infected individual must quarantine as follows:

• 14 days after the last contact with the infected person; or
• If the employee continues to live with or care for the infected person, the last day of quarantine will be either:
  • 14 days from the date the infected person(s) started to follow home isolation instructions (when close contact can be avoided); or
  • 14 days from the date the infected person was told that they can stop isolation (when close contact cannot be avoided)

Employers should consider various paid leave laws for employees undergoing isolation such as paid sick leave, leave pursuant to the federal Families First Coronavirus Response Act, workers’ compensation, pay under the new Cal/OSHA regulations, etc. 

3. Notify Employees of Potential Exposure

On September 17, 2020, Governor Gavin Newsom signed Assembly Bill 685, which requires employers to provide written notice within one business day upon learning of potential exposure to COVID-19 in the workplace. The notice must be provided to all employees and employers of subcontracted employees who were present at the same worksite as the “qualifying individual” within the infectious period, stating that they may have exposed to the virus.

A “qualifying individual” is any person who has any of the following:

• A laboratory-confirmed case of COVID-19;
• A positive COVID-19 diagnosis from a licensed health care provider;
• A COVID-19-related order to isolate provided by a public health official; or
• Died due to COVID-19, as determined by a county public health department or per inclusion in a county’s COVID-19 statistics.

The notice must include information pertaining to COVID-19 related benefits that employees may be entitled under applicable federal, state, and local laws (e.g., workers’ compensation, COVID-19 related leave, company paid sick leave, etc.).

The notice must include the employer’s disinfection and safety plan in response to COVID-19 exposure, per CDC guidelines, and be in both English and the language understood by the majority of employees. It must be provided in the manner normally used to communicate employment-related information (e.g., e-mail, text message, or personal service). Employers must be mindful to not disclose the identity of the infected individual.

Employers must maintain records of the notifications for at least three years. Please feel free to reach out to one of our team members for a sample notice.

4. Notify Your Workers’ Compensation Carrier

On September 17, 2020, Governor Newsom signed Senate Bill 1159, which requires employers to notify their workers’ compensation carriers within three business days of when the employer “knows or reasonably should know that an employee has tested positive for COVID-19.”

The employer must disclose (i) that an employee has tested positive for the virus; (ii) the date of the employee’s test; (iii)  the specific address where the employee worked during the 14 days preceding the date of the positive test; and (iv) the highest number of employees who reported to work at the employee’s specific place of employment in the 45 days preceding the last day the employee worked at the location. Employers cannot provide any personally identifiable information regarding an employee unless the employee states the infection is work-related or has filed a claim. 

Employers may be subject to civil penalties up to $10,000 for intentionally submitting false or misleading information, or for failing to report the specified information.  Please feel free to reach out to one of our team members for a sample notice.

What to do When Your Workplace Has a COVID-19 Outbreak

California Assembly Bill 685 requires employers to report COVID-19 cases to local health authorities within 48 hours of learning of an “outbreak.” The California Department of Public Health defines “outbreak” as “three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.”

Employers facing a COVID-19 outbreak must provide local health authorities the names, numbers, occupations, and worksite of any employees related to the outbreak. Employers must also report the business address and North American Industry Classification System (NAICS) code of the worksite where the qualifying individuals work. Employers must continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite impacted by the outbreak.

Finally, employers are also required to notify employees of the disinfection and safety measures that will be taken in response to the COVID-19 exposure per the guidelines of the Centers for Disease Control & Prevention.

 Sue M. Bendavid and Chrystal Ferber are attorneys in our Employment Practice Group.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.