If anyone cares to count, today, April 15, is Day 55 and the beginning of California’s stay at home directives Week Nine. The Public Health Director’s latest statewide order (May 7) sets out “California's path forward from the initial [March 19] ‘Stay-at-Home’ Order in California's Pandemic Roadmap” in four phases:  Stage 1: safety and preparation; Stage 2: reopening of lower-risk workplaces and other spaces; Stage 3: reopening of higher-risk workplaces and other spaces; and Stage 4: finally an easing of final restrictions leading to the end of the stay at home order.

The May 7 order announces the gradual movement of the entire state from Stage l to Stage 2, with procedure for the state’s 58 counties to accelerate their transition. At our last count, 21 counties have announced such ability. We also count 14 counties which have rescinded their local orders in order to follow just the statewide guidances:

• Colusa
• Calaveras
• El Dorado
• Stanislaus
• Inyo
• Kern
• Kings
• Lake
• Nevada
• Placer
• Riverside
• San Benito
• San Bernardino, and
• Tehama

Nevertheless, the majority of counties and numerous major cities continue to have local orders in place, many with rules more restrictive than the state’s. To our knowledge, and as of May 15:

Thanks again to our legal assistant Daniska Coronado for this continuing compilation. There continues to be no other attempted comprehensive statewide listing readily available online.

As counties continue to rely on their particular data, we can be sure that requirements of varying strictness continue to change frequently, local jurisdiction-by-local jurisdiction.

See also:

• In the Know: Post-Pandemic Workplace Policies (May 14, 2020)
• Closed for Business, Sort of; City of Los Angeles Extends Its “Safer at Home” Posting Requirements (May 6, 2020)
• The New Normal; Organizing or Post-Pandemic Workplace Revival (April 30, 2020)
• Are We Done Yet?; Workplace Return Planning (April 29, 2020)
• Thinking the Unthinkable; Workplace Return? (April 23, 2020)

• Keep It to Yourself; Essential Workers Must Cover Up and Stay Six Feet Apart (April 16, 2020)
• When the Show Must Go On; Key Protection for an Employee’s COVID-19 Diagnosis/ Symptoms (April 8, 2020)

For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
Daniska Coronado
May 15, 2020

If California has been able to flatten the COVID-19 curve over the past two months, it has been by a sustained flood (pandemic?) of government directives and orders. Over the past week alone, the State of California has issued no less than 26 road maps, guidance memos, and checklists relating to workplace disease prevention. Within that time, many of the state’s major cities and counties have also published sets of updated guidelines and restrictions.

As commerce ramps back up, we have completed a set of policies and protocols to aid employers in establishing the new post-pandemic “normal” these multiple state and local orders now require. These include:

• COVID-19 Return to Work Checklist (updated May 14, 2020): This checklist will help an employer create its specific return-to-work plan. It lists and breaks down all critical personnel management issues and includes important government links to ensure ongoing compliance with applicable government ordinances, regulations, etc., e.g., required notice postings.
  
• Families First Coronavirus Response Act Policy (updated April 29, 2020): This policy summarizes the FFCRA’s Emergency Paid Sick Leave and Expanded Emergency Family and Medical Leave.

• Hygiene and Safety Policy (updated May 14, 2020): Also intended for universal workplace distribution, this policy sets the foundation for the spectrum of on-site measures to maintain the post-pandemic health of the workforce, including sanitation, required interaction restrictions, and procedure for reasonable accommodation on disability or religious grounds.

• Infectious Disease Control Policy (updated May 14, 2020): Intended for universal workplace distribution, this policy includes vital management prerogatives and employee responsibilities for the prevention of any pandemic recurrence through the workplace, e.g., the conditions on which management can require worker medical clearance before entering the premises.

To order or for more information, contact Office Manager Aimee Rosales at 626.583.6600 or email her at officemgr@tbowleslaw.com.

Law Offices of Timothy Bowles
May 14, 2020

On May 4, Mayor Eric Garcetti extended Los Angeles’s strict pandemic-driven health directive to May 15, signaling a gradual easing of restrictions from there if and as conditions warrant. It has been a remarkable evolution.

The city’s March 19, 2020 initial “Safer at Home” public order restricts public gatherings and effectively causing non-essential businesses to close their physical locations. Failure to comply with the order is a misdemeanor that can result in fines and/or imprisonment.

Certain business operations and activities are exempt for providing essential activities and services critical to the city’s health and well-being, including but not limited to:

• healthcare operations
• grocery stores
• gas stations
• auto repair shops
• financial institutions
• hardware stores
• plumbers
• electricians
• mailing and shipping services
• certain educational institutions to facilitate distance learning
• laundromats
• dry cleaners
• restaurants (via delivery service, pick-up service or drive-thru), and
• transportation services

On April 10, 2020, Mayor Garcetti revised the order to require all exempt essential businesses to adopt and post near their entrances a “Social Distancing Protocol” by April 15 for every facility they operate, a blank sample provided in Appendix A to that order. Essential businesses must also provide a copy of the Protocol to each employee performing work onsite. See, Keep It to Yourself; Essential Workers Must Cover Up and Stay Six Feet Apart (April 16, 2020).

That revised version also permitted non-essential businesses to conduct minimum basic operations including:

• inventory
• security
• custodial services
• payroll and employee benefits processing, and
• any reasonable activity designed to maximize the ability for its employees to work remotely from their homes

On April 27, 2020 and as further revised May 4, 2020, Mayor Garcetti required any non-essential businesses conducting minimum basic operations to keep their doors closed and locked to the public at all times and to post a sign on their main entrances stating that the business is closed to the public.

This locked-to-the-public version of the order remains in place until May 15, 2020 and may be extended or modified from there.

See also:

• Our New Normal Week Seven (May 1, 2020)
• The New Normal; Organizing or Post-Pandemic Workplace Revival (April 30, 2020)
• Are We Done Yet?; Workplace Return Planning (April 29, 2020)
• Thinking the Unthinkable; Workplace Return? (April 23, 2020)
• COVID-19 Safety Nets; Overview of CARES Act Small Business Loans (April 14, 2020)
• When the Show Must Go On; Key Protection for an Employee’s COVID-19 Diagnosis/ Symptoms (April 8, 2020)

For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
May 6, 2020

We are entering week seven from Governor Newson’s March 18 order requiring all California residents to stay at home or place of residence until further notice. Businesses and functions deemed essential to 16 federally-designated “critical infrastructure” sectors are excepted. The state is regularly updating “COVID Response – Stay Home Except for Essential Needs FAQs” for further guidance.

The governor has specified six indicators to warrant modification of the March 18 order:

• The ability to monitor and protect our communities through testing, contact tracing, isolating, and supporting those who are positive or exposed;
• The ability to prevent infection in people who are at risk for more severe COVID-19;
• The ability of the hospital and health systems to handle surges;
• The ability to develop therapeutics to meet the demand;
• The ability for businesses, schools, and child care facilities to support physical distancing; and
• The ability to determine when to reinstitute certain measures, such as the stay-at-home orders, if necessary.

Since our April 17 listing, we count five more California counties and one city joining those which have implemented similar – and in many instances progressively stricter -- “Safer at Home,” “Shelter in Place” or “Stay Well at Home” orders.  Sutter and Yuba counties have  issued a joint order, effective May 4, phasing out their previous restrictions. To our knowledge, and as of May 1:

Thanks to our legal assistant Daniska Coronado for this continuing compilation. There appears to be no other attempted comprehensive statewide listing readily available online.

Perhaps there is good reason for this. We cannot confirm this collection is complete or will even still be current by the beginning of the coming week. As applies to your locale, please use the above links and other online resources for updates. Requirements of varying strictness continue to change frequently, municipality-by-municipality.

See also:

• The New Normal; Organizing or Post-Pandemic Workplace Revival (April 30, 2020)
• Are We Done Yet?; Workplace Return Planning (April 29, 2020)
• Thinking the Unthinkable; Workplace Return? (April 23, 2020)
• Keep It to Yourself; Essential Workers Must Cover Up and Stay Six Feet Apart (April 16, 2020)
• COVID-19 Safety Nets; Overview of CARES Act Small Business Loans (April 14, 2020)
• When the Show Must Go On; Key Protection for an Employee’s COVID-19 Diagnosis/ Symptoms (April 8, 2020)

For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
Daniska Coronado
May 1, 2020

“Science is organized knowledge. Wisdom is organized life.” Emmanuel Kant

Once upon a time (not too) long ago, our current of state business and workplace hibernation was unimaginable. As management plans for return to full operation, best practice in whatever the form – letter, notice posting, policy – will acknowledge a new definition of normal, welcoming “respiratory etiquette,” “hand hygiene,” “personal protective equipment” (PPE), and “effective social distancing” into daily interchange.

The Spanish Flu pandemic of 1918-1919 infected some 500 million people – about one-third of the world’s population – and killed an estimated 50 million, more by far than perished in the World War I horrors that preceded it and in the World War II slaughters, combined. The Spanish Flu came in three waves of varying intensity that correlated directly with preventative measures taken. With no vaccine to protect against influenza infection and no antibiotics to treat secondary bacterial infections, globally uncoordinated control efforts were limited to isolation, quarantine, good personal hygiene, use of disinfectants, and limitations of public gatherings.

That flu’s two major recurrences over some 18 months should impart wisdom enough for adequate COVID-19 precautions even after any upcoming “all clear.”

California requires all employers to adopt and maintain a written injury and illness prevention program (IIPP). With aid of Occupational Health and Safety Administration (OSHA) COVID-19 standards, new and expanded IIPP standards might well include:

Standards for Maintaining a Healthy Work Environment: These could start with a thorough professional disinfection prior to a workplace reopening. Executives should also explore hiring a professional safety consultant for a one-time engagement to make sure the workplace is properly configured to minimize risk of virus outbreak.

Management should consider appointing a staff point person to oversee all pandemic-related programs and actions.

Standards should include sound respiratory etiquette, hand hygiene, and adequate social distancing for all employees and others present at the worksite as well as an intensified routine of ongoing cleaning and disinfection.

Following the example of food stores and other outlets that have stayed open through the pandemic, an employer should consider marking floors with one-way arrows to limit close physical proximity in frequently-used aisles and hallway. It could also be sound practice to enhance separations by plexiglass between cubicles or workstations, removing some of the chairs from the lunchroom, and so forth.

Standards to Prevent the Pandemic’s Return: Overlapping with environmental actions, management must adequately incorporate federal and applicable state and local health prevention protocols as those continue to evolve. A sufficiently educated workforce can help limit recurrence to a minimum.

An employer must judge and clearly document its adequate screening procedures for workplace entry and retry. Options include questionnaires for entering personnel and visitors, required negative COVID-19 tests, temperature taking, symptoms reporting and continued isolation and quarantine actions. See, When the Show Must Go On; Key Protection Protocols for an Essential Industry Employee’s COVID-19 Diagnosis/Symptoms.

Standards to Promote Productivity: Perhaps more important than ever, employers should consider incentives for rewarding production and initiative. Management also ought to reiterate its anti-discrimination, harassment and retaliation policies, e.g., pandemic-fueled racial or national origin hostility will not be tolerated.

Good practice would include updated contact information for all personnel. Employers should consider in advance what to do with employees who want to continue teleworking out of fear or just out of personal preference.

Management must also maintain flexible leave and other policies to accommodate workers experiencing the ongoing effects of the pandemics. See, Federal Coronavirus Workplace Relief; New Paid Sick Leave, Family Leave And Tax Credits Effective April 2, 2020)

These points are of course not intended as comprehensive. Government has undertaken to address particular conditions for particular industries. See, e.g. OSHA’s COVID-19 Guidance for the Construction Workforce; COVID-19 Guidance for the Manufacturing Industry Workforce; COVID-19 Guidance for the Package Delivery Workforce; and COVID-19 Guidance for Retail Workers. Ultimately, a company’s scope and degree of such new standards depend heavily on its operations and circumstances.

See also:

• Are We Done Yet?; Workplace Return Planning (April 29, 2020);
• Thinking the Unthinkable; Workplace Return? (April 23, 2020)
• COVID-19 Safety Nets; Overview of CARES Act Small Business Loans (April 14, 2020)

Our firm is helping its employer clients develop the policies and protocols needed to match these extraordinary times. For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
April 30, 2020

There is no shortage of federal guidelines for preventing a new pandemic wave as more businesses welcome workers back to resume full production. Reflecting many of our recent articles, the Occupational Safety and Health Administration (OSHA) Guidance Summary: Preparing Workplaces for COVID-19 advises:

• Developing a preparedness and response plan (also see our article: Thinking the Unthinkable; Workplace Return?);
• Basic infection prevention measures (mandatory masks and other “personal protective equipment” [PPE] are among the prevailing practices, underscored by local directives (see, Keep It To Yourself; Essential Workers Must Cover Up and Stay Six Feet Apart);
• Procedures to identify and isolate sick people (see, When the Show Must Go On; Key Protection Protocols for an Essential Industry Employee’s COVID-19 Diagnosis/Symptoms);
• Flexible leave and other policies to accommodate workers experiencing the ongoing effects of the pandemics (see, Federal Coronavirus Workplace Relief; New Paid Sick Leave, Family Leave And Tax Credits Effective April 2, 2020); and
• Engineering controls (example: plexiglass barriers at market checkout).

The Centers for Disease Control’s Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) is also a helpful resource, stressing the importance of specific written workplace protocols for employee education and health operation. See also, Business As Unusual; COVID-19 Generated Expansions to Our Model Employee Handbook and Forms.

As 2020’s runs on toilet paper and hair dye have demonstrated, life’s only constant is change. Whether full return to work is only a few weeks away or longer, we can be sure the national, state and local standards for the transition will evolve in response to whatever new and unprecedented circumstances arise. Stay tuned.

• COVID-19 Safety Nets; Overview of CARES Act Small Business Loans (April 14, 2020)
• It’s a Wash; COVID-19 Paid Leave and Tax Credits (April 9, 2020)
• COVID-19 Gets Noticed (April 2, 2020)
• Unemployment Goes Viral; Furlough or Layoff, Distinction without a Difference? (March 28, 2020)
• Workplace Safety Nets; The Coronavirus Outbreak and California Unemployment Benefits (March 27, 2020)
• Telecommuting in Response to Coronavirus Outbreak (March 18, 2020)

Our firm continues to assist employer clients develop timely policies and protocols to enable continued or resumed operations while safeguarding worker health and safety in this extraordinary time. For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
April 29, 2020

All U.S. employers must verify identity and work authorization for each employee hired within the U.S., including citizens and non-citizens, using “Form I-9, Employment Eligibility Verification” (I-9 Form). Starting May 1, 2020, businesses nationwide must begin using the revised I-9 Form (rev. 10/21/2019).

Section 2 of the revised form requires employers to physically verify the employee’s original documentation to determine their legality. This revision must be done within the first three business days of the employee’s first day of work.

The Department of Homeland Security (DHS) announced that employers and workplaces operating remotely due to COVID-19 may follow the DHS news release which permits such employers to perform I-9 documentation inspections remotely over video link, fax or email, etc. so long as they obtain, inspect and retain copies of the documents within three business days of hire and enter “COVID-19” in the Form’s Additional Information field.

Employers who perform inspections remotely must also provide written documentation of their remote onboarding and work-from-home policy for each employee.

A physical document inspection must take place after normal operations resume, at which time the date of the physical inspection and who conducted it should also be recorded in the Additional Information field.

Please review these government-issued FAQs for more information about COVID-19 related Form I-9 compliance.

Employers who fail to use the revised form by the May 1 deadline may be subject to all applicable penalties under section 274A of the Immigration and Nationality Act as enforced by U.S. Immigration and Customs Enforcement.

See also:

• What’s New in 2020 – Dot Your I-9’s (February 14, 2020)

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

Cindy Bamforth
April 25, 2020

Perhaps to dream but whether full business revival is prompt or eventual, the U.S. Equal Employment Opportunity Commission (EEOC) today issued expanded pandemic-related guidelines for screening returning employees.

As covered in Infection Protection, What Employers Can Ask in a Pandemic (March 25), the EEOC has loosened many of its normal-time Americans with Disabilities Act (ADA) restrictions against employer intrusions into worker illness symptoms and medical care.

Symptomatic Workers Stay Home: Thus, by the EEOC’s "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act," management for example may send a worker home if displaying or disclosing any COVID 19-related symptoms (e.g., fever, chills, cough, shortness of breath, or sore throat). It is irrelevant that the employee may have no more than an allergy or common cold. Employers may also apply this principle for people returning. Yet, it’s one thing to simplistically request “symptom free, please” (definitely not a best practice) and quite another to easily find consensus among the myriad federal agencies when a COVID-19 infected or suspected person is considered no longer contagious. However, Los Angeles County Department of Public Health (LACDPH) “Home Isolation Instructions” offer:

“Stay home until at least 7 days have passed after your symptoms first appeared AND at least 3 days after you have recovered. Recovery means that your fever is gone for 72 hours without the use of fever-reducing medications and your respiratory symptoms (e.g. cough, shortness of breath) have improved.”

Management May Require COVID 19 Testing to Enter Workplace: The EEOC now advises that employers may administer a mandatory “test to detect the presence of the COVID-19 virus” to employees “before permitting them to enter the workplace.” While across-the-boards medical testing is only occasionally justified in normal times, the agency is greenlighting such pandemic assessment as a workplace health and safety necessity. The EEOC leaves it to business management to “ensure that the tests are accurate and reliable” and suggests consulting the Food and Drug Administration (FDA) for guidance in turn. A search of the FDA’s online COVID-19 FAQs shows that agency is scrambling:

“Q: Is there a test for COVID-19?

“[FDA Answer]: Yes, there are tests for COVID-19. Though there is currently no FDA-approved or cleared test for COVID-19, the FDA has issued several Emergency Use Authorizations (EUAs). During public health emergencies declared under [law], the FDA is able to issue EUAs when certain criteria are met that allows for the use and distribution of potentially life-saving medical products to diagnose, treat, or prevent the disease, which can include diagnostic tests.”

As with previous scourges such as Ebola (2014-present), testing will become more assured and FDA-approved as more is known about COVID-19. For the time being, management best practices should include adequate research to confirm that any test used is FDA-recognized. Employers must maintain all test results confidential, included in the separate health information files for respective workers.

Employers Permitted to Take Employee Temperatures Daily: The EEOC has also relaxed its usual-times prohibition of blanket temperature taking as a medical examination in violation of worker privacy. Until further notice however, the “gloves are on” for reliable temperature taking of every employee on arrival to the workplace, with individuals sent home if displaying any fever and with all information preserved as confidential,.

Employers Should Develop an Overall Screening Plan: The EEOC advises that employers may continue the above extraordinary measures as long as the pandemic poses a “direct threat” as “based on the best available objective medical evidence.” As the backside of the COVID-19 curve becomes more evident, public health authorities are likely to take a gradual, trial-period approach to reversing their currently strict “stay home” directives. Management best practices should include transitional policies consistent with these developments, including the EEOC’s return to its tighter pre-pandemic restrictions.

See also:

• Keep It to Yourself; Essential Workers Must Cover Up and Stay Six Feet Apart (April 16, 2020)
• COVID-19 Safety Nets; Overview of CARES Act Small Business Loans (April 14, 2020)
• It’s a Wash; COVID-19 Paid Leave and Tax Credits (April 9, 2020)
• When the Show Must Go On; Key Protection for an Employee’s COVID-19 Diagnosis/ Symptoms (April 8, 2020)
• COVID-19 Gets Noticed (April 2, 2020)
• Unemployment Goes Viral; Furlough or Layoff, Distinction without a Difference? (March 28, 2020)
• Workplace Safety Nets; The Coronavirus Outbreak and California Unemployment Benefits (March 27, 2020)
• Federal Coronavirus Workplace Relief (March 23, 2020)

Our firm is currently helping many employer clients to develop critical policies and procedures that enable continued or resumed operations while protecting worker health and safety in this extraordinary time. For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
April 23, 2020

We are in our fifth week following Governor Newson’s March 18 order requiring all California residents until further notice to stay at home or place of residence except for those in businesses and functions deemed essential to 16 federally-designated “critical infrastructure” sectors.

The state last updated yesterday its “COVID Response – Stay Home Except for Essential Needs FAQs” offering further guidance.

Since our initial April 3 listing, we count four more California counties joining those which have implemented similar – and in many instances progressively stricter -- “Safer at Home” or “Shelter in Place” orders. To our knowledge, and as of April 17:

Thanks to our legal assistant Daniska Coronado for this compilation. There appears to be no other attempted comprehensive statewide listing readily available online.

Perhaps there is good reason for this. We cannot confirm this collection is complete or will even still be current by nightfall. As applies to your locale, please use the above links and other online resources for updates. Requirements of varying strictness continue to change frequently, municipality-by-municipality.

See also:

• Keep It to Yourself; Essential Workers Must Cover Up and Stay Six Feet Apart (April 16, 2020)
• COVID-19 Safety Nets; Overview of CARES Act Small Business Loans (April 14, 2020)
• Port in a Storm; Our Webinar on Workplace COVID-19 Realities (April 10, 2020)
• It’s a Wash; COVID-19 Paid Leave and Tax Credits (April 9, 2020)
• When the Show Must Go On; Key Protection for an Employee’s COVID-19 Diagnosis/ Symptoms (April 8, 2020)
• Safer at Home; California’s Coronavirus Response, Statewide and Local April 3, 2020 Current Status (April 3, 2020)
• COVID-19 Gets Noticed (April 2, 2020)
• Unemployment Goes Viral; Furlough or Layoff, Distinction without a Difference? (March 28, 2020)
• Workplace Safety Nets; The Coronavirus Outbreak and California Unemployment Benefits  (March 27, 2020)
• Federal Coronavirus Workplace Relief (March 23, 2020)

For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
Daniska Coronado
April 17, 2020