Businesses Develop Safety Protocols as California’s Economy Slowly Reopens

By Toni Vranjes May 12, 2020
Masked Restaurant Employee Bagging Up To-Go Order

As part of a four-phase plan to gradually restart the California economy, Gov. Gavin Newsom is allowing some employers to reopen their workplaces—as long as they meet strict guidelines.       

Citing encouraging data in the fight against the coronavirus, the state allowed certain lower-risk businesses to reopen. These include retailers, such as florists and bookstores, which can sell their products for curbside pickup. Some manufacturing and warehouse workplaces also can resume operations.

All companies that reopen must have safeguards in place, however, to lower the risk of spreading the virus. Under new state guidance, employers across all industries should create a workplace plan that includes cleaning, social distancing, infection control and health screening. The document also includes some industry-specific guidance for retailers, manufacturers and warehouses.

Before starting up again, employers should take a number of steps. First, they should review all relevant guidance from federal, state and local governments. Then, they should carefully evaluate risks at the workplace. After the risk assessment, employers should develop and implement a workplace safety plan and provide training to employees on how to limit the spread of the virus.

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Coronavirus and COVID-19

Workplace Safety Plans

Many companies are eager to reopen, but they have questions about precisely how to do it, said Charles Thompson, an attorney with Ogletree Deakins in San Francisco. His clients have been asking about social distancing, face coverings, health screenings and other topics.

Lonnie Giamela, an attorney with Fisher Phillips in Los Angeles, said employers should review state and local governmental orders, along with guidance from federal agencies such as the U.S. Centers for Disease Control and Prevention (CDC). Within those parameters, they should develop a safety plan tailored to their workplace.

"Businesses need to recognize that there is no one-size-fits-all process for businesses to ramp up operations and reinstate employees back to work," Giamela observed.

Under certain conditions, the state may give counties some flexibility. Counties with less restrictive public-health measures than the state need to justify their decisions, showing that public health will be protected, said Benjamin Kim, an attorney with Nixon Peabody in Los Angeles.

Allison Callaghan, an attorney with Nossaman in Sacramento, noted that companies have a "clear duty" to ensure a safe and healthy workplace. However, what that will look like at any given workplace may vary.

There are many factors to consider, including the size of the company, its location and the type of work done. The protocols also may vary within companies, Kim said.

As companies transition to this new reality, they also should be aware of potential legal risks. Giamela outlined three basic categories:

  • Workers' compensation and negligence claims related to workplace safety protocols.
  • Discrimination and fair-employment claims regarding how workers are selected to return to the workplace and also regarding any layoffs that may occur.
  • Wage and hour claims related to issues such as improper reduction of salaries, or miscalculation of overtime.

Employers should note that under a May 6 executive order, California employees with COVID-19 who meet specific criteria are presumed to have contracted the virus at the workplace. Employers, however, will have the opportunity to refute that. The presumption applies to those who test positive within 14 days after performing work outside the home. The executive order is effective from March 19 to July 5.

Returning to the Workplace

Employers should designate a point person within each department, advised Sharon Bauman, an attorney with Manatt in San Francisco and Los Angeles.

Kim added that businesses should try to reduce the number of people in the office at any one time. Those who need to be at the workplace could return, while others might continue telecommuting.

Also, companies should try to keep employees at least six feet apart, if possible. To help achieve this goal, employers could move cubicles farther apart or reconfigure the workspace in other ways.

In addition, employers should encourage video conferencing instead of in-person meetings and work travel, Giamela said.

Staggered meal breaks also could help, so that not everyone is going to lunch at the same time, according to Kate McGuigan, an attorney with Morgan Lewis in Los Angeles.

Then there's the issue of masks. The CDC recommends that people wear face coverings in public places. In California, some regions have their own mandates. For instance, Los Angeles requires essential businesses to either give face coverings to employees or reimburse them for the cost.

Some attorneys suggested that office workers wear face coverings unless they're inside an office with the door closed. However, workers with health conditions, such as respiratory problems, should consult with their doctor about the proper use of a mask at the workplace, and employers may need to consider reasonable accommodations.

In certain situations, employers might consider installing plexiglass barriers in the workplace to limit transmission of the virus.

There also might be a role for other protective equipment. Giamela cited the example of a receptionist who wears gloves and protective glasses when opening mail.

Additionally, employers should have specific cleaning protocols that go beyond the nighttime janitorial service, according to Giamela. This could include detailed procedures for employees to keep their workstations clean. Businesses also could urge workers to minimize contact with handrails or doorknobs. Good hygiene is also very important, and employers could post signs reminding employees to wash their hands thoroughly in the restroom.

For shared equipment like photocopiers and printers, there should be stringent cleaning protocols, Bauman said. Also, disposable gloves or hand sanitizer should be available next to the machines.

Companies also should ensure that they have good ventilation systems in their buildings, she suggested.

If a company decides that employee temperatures should be taken, it's advisable to outsource that task to a health professional, said Veronica Gray, an attorney with Nossaman in Irvine. For health screenings, the company must ensure that it complies with all relevant legal requirements, she emphasized.

Businesses also should have a specific process for employees to follow if they develop symptoms, attorneys said. And send a clear message: Sick employees should stay home.

Also, have employees sign an acknowledgement that they received a copy of the safety procedures, McGuigan advised.

"Companies that have strong planning and preparation, and a strong line of communication with employees, are likely to gain the trust and confidence of employees," Bauman observed.



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