E-Blasts

With the Coronavirus (aka COVID-19) making every news headline in the past several weeks employers are asking—what do I do as an employer?

Here are some frequently asked questions we are seeing pop up:

  1. What can I do as an employer to reduce spread in my workforce?

Encourage employees to practice good general illness avoidance—for example:

  • Wash hands often for at least 20 seconds, per CDC guidelines. (Read more from the CDC regarding Handwashing here.)
  • Avoid touching your face (eyes, nose, and mouth).
  • Frequently clean and disinfect workspaces.
  • Ramp up third party vendor cleaning services for common areas.
  • Consider whether telephonic conferences are possible instead of in-person meetings. (Read more from the CDC regarding Illness Prevention here.)

Employers should encourage employees who have symptoms of respiratory illness and/or fever to stay home. See CDC guidance for employers here.

  1. Can I force an employee to take their temperature?

No. Even though it’s a commonplace and simple act, taking someone’s temperature is a “medical examination” under the law. The Americans with Disabilities Act (“ADA”) prohibits an employer from requiring medical examinations unless the inquiry is job-related and a business necessity or the employer has a reasonable belief that the employee is a direct threat to others and that threat can’t be eliminated by reasonable accommodation. Particularly relevant, a temperature alone does not necessarily mean that an employee is infected with Coronavirus.

A better practice is to follow your Company’s policy for sending employees home if you are concerned an employee is ill and endangering others—see topic 3 below, “Can I send an employee home?”

  1. Can I send an employee home?

The EEOC has already issued guidance to employers—directing employers to its 2009 H1N1 guidance here. Per the EEOC, employers may direct workers with symptoms to go home under the ADA if the illness is serious enough to pose a direct threat to the employee or coworkers—however, this type of policy should be applied in a non-discriminatory manner. Employers may also encourage employees to telework from home, if possible.

The California Labor Commissioner says that an employee is entitled to “reporting time pay” for reporting to a regularly scheduled shift and then being sent home. For example, a worker who reports to work for an eight-hour shift and only works for one hour must receive four hours of pay, one for the hour worked and three as reporting time pay so that the worker receives pay for at least half of the expected eight-hour shift. An exception to reporting time pay is where operations cannot commence or continued when recommended by civil authorities. You can read more about reporting time pay here.

For your operation’s exempt workers, it’s important to note that they must receive their full weekly salary if they do not work the full week because the employer failed to make work available. An exempt employee who performs no work at all during a week may have their weekly salary reduced.

Deductions from salary for absences of less than a full day for personal reasons or for sickness are not permitted. If an exempt employee works any portion of a day, there can be no deduction from salary for a partial day absence for personal or medical reasons.

Federal regulations allow partial day deductions from an employee's sick leave bank so that the employee is paid for their sick time by using their accrued sick leave. If an exempt employee has not yet accrued any sick leave or has exhausted all of their sick leave balance, there can be no salary deduction for a partial day absence.

Deductions from salary may also be made if the exempt employee is absent from work for a full day or more for personal reasons other than sickness and accident, so long as work was available for the employee, had they chosen to work.

  1. What does OSHA say?

There are no specific OSHA standards covering the Coronavirus to date, however, employers do have to comply with the “General Duty Clause,” which requires employers provide a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm. You can read the OSHA statement here.

On March 9, 2020, the Department of Labor (“DOL”), OSHA division published guidance on workplaces and Coronavirus, available here. The guidance encourages employers to develop a plan now for how it will handle Coronavirus in the event of “worsening outbreak conditions.”

  1. What about California employers?

The Labor Commissioner has already stated in its FAQs that California’s paid sick leave law can be used for illness due to Coronavirus.

You can read the DIR’s FAQ here.

  1. What is the best practice for reducing the threat of Coronavirus to my workplace?

Maintaining and developing open dialogue with employees during this time about how your Company intends to handle Coronavirus is key. Consider a more generous leave policy during this time to encourage employees to stay home if they are sick. Remember that with school districts closing, employees may also have problems organizing childcare during this time, so work to accommodate those requests. Undoubtedly, specific situations will arise that will require an employer to engage in the interactive process to attempt to accommodate the many multitudes of potential problems that will arise with the Coronavirus threat. Remember to consult your attorney about specific situations as they arise.

COUNSEL TO MANAGEMENT:

Employers can make simple and practical changes to the workplace to reduce the threat of Coronavirus—especially having cleaning supplies readily available and encouraging employees to wash their hands and stay home if they are ill. Many employers are issuing more generous paid sick leave policies during this time to encourage employees to stay home if they are sick. If you have questions about paid sick leave policies or leave law, contact the experts at The Saqui Law Group, a division of Dowling Aaron Incorporated.

High heat temperatures are continuing throughout California. Please read our previous eBlast discussing California’s high heat illness prevention standard and steps that employers must take to protect outdoor workers from potential heat illness here. Many areas throughout California have already reached or exceeded 80 degrees, which trigger an employer’s obligation to comply with California Heat Illness Prevention guidelines.

Today, Cal/OSHA issued a news release urging all employers to protect outdoor workers from heat illness. The news release is available here. Several cities across the state are already dealing with high heat temperatures and it is expected to stay between 90 and 100 degrees for the next few weeks, which triggers an employer’s obligation to comply with California Heat Illness Prevention guidelines. With temperatures on the rise throughout California, this is an important time for employers to re-evaluate their company’s Heat Illness Prevention guidelines and ensure that their policies are updated and compliant.

Last week, a California Appeals Court answered a narrow question as to whether the interior of a non-air-conditioned bus can be deemed an “outdoor place of employment” for the purposes of the California’s heat illness prevention regulations. The Appeals Court, which agreed with the decision of the lower court, held that, “outdoor” is defined as ‘out of doors’ or ‘not in a building" and that if “an enclosure or structure does not provide sufficient environmental protections to be considered ‘indoor’ then it is ‘outdoor.’”

As most employers know, under California Code of Regulation, title 8, section 3395, employers with outdoor places of employment are required to put in writing and implement an effective heat illness prevention plan, which includes, but is not limited to, procedures for providing sufficient water, access to shade, and high-heat. In November 2007, Cal OSHA cited AC Transit, which operates buses throughout Alameda County and adjoining areas, for violation of heat illness prevention laws with respect to the operation of non-air-conditioned buses for (1) failure to supply adequate drinking water to drivers; (2) failure to make shade continuously available for drivers; and (3) failure to develop heat illness procedures and related training for employees and supervisors. During relevant timeframes, AC Transit employed between 1,200 and 1,900 drivers and operated 695 buses, only 20 percent of which were air-conditioned.

High heat temperatures have officially arrived throughout California. As a result, Cal/OSHA published a news release reminding all employers to protect their outdoor workers from heat illness. The press release is available here. Many areas throughout California have already reached triple digits, which trigger an employer’s obligation to comply with California Heat Illness Prevention guidelines.

On Tuesday, the Department of Industrial Relations published a news release announcing that the Division of Occupational Safety and Health of California (“Cal/OSHA”) cited marine cargo handler SSA Pacific Inc. for willful and serious safety violations after the investigation of a fatal forklift accident in San Diego. According to the news release, an employee was driving a forklift when he collided with a concrete column and suffered fatal injuries after being thrown from the forklift while not wearing a seatbelt. Additionally, the investigation revealed that multiple safety devices on the forklift had been disabled, including the seatbelt warning buzzer and the mast interlock system that should disconnect power from the hydraulic lift when the operator is not in the seat.

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