California Releases New Reopening Guidance for Employers

The Playbook details mandatory and recommended steps that all employers statewide should take to reopen safely to mitigate the risks associated with COVID-19. The Playbook is intended to help employers “plan and prepare for reopening their business[es] and to support a safe, clean environment for workers and customers.” The four areas covered by the Playbook are (1) how to open safely, (2) what to do if there is a case of COVID-19 in the workplace, (3) enforcement and compliance, and (4) worker education. The Playbook also includes appendices of resources for both employers and employees, as well as case studies to serve as illustrative examples.

The Playbook outlines steps employers must take to open safely and respond to COVID-19 exposure in the workplace. It also recommends actions that employers should consider in reporting cases to their local health department, in communicating with their employees, and in preventing further spread of the virus in the workplace. The California Governor’s Office of Emergency Services has established a COVID-19 Enforcement Task Force that will help employers navigate compliance and enforce violations related to indoor operations, use of face coverings, social distancing, and administrative actions.

How to Open Safely: Six Mandatory Guidelines
As detailed in the Playbook, before reopening, all employers must take the following six steps:

1. Perform a detailed risk assessment and create a work site-specific prevention plan that should include, among several other enumerated items, steps to respond to a positive case or outbreak of COVID-19. The Playbook includes helpful hyperlinks to previously issued industry-specific guidance that details what must be included in an employer’s prevention plan.
2. Train employees on how to limit the spread of COVID-19, which includes training employees on how to screen for symptoms, when to stay home, and what to do if they become symptomatic in the workplace.
3. Implement individual control measures and screening procedures.
4. Implement disinfection protocols.
5. Establish physical distancing guidelines.
6. Establish universal face covering requirements in accordance with guidelines previously published by the CDPH.

Outbreak Identification Preparedness Actions
The Playbook further provides the following additional requirements for employers:

• Appoint a workplace infection prevention coordinator to implement prevention procedures and manage COVID-19-related issues.
• Ensure that sick leave policies are sufficiently generous and flexible to allow sick employees to stay home without penalty. Employers must ensure that employees understand these policies and that employees are aware of applicable leave benefits. For example, under the California Family Rights Act, employees may be entitled to up to 12 weeks of job-protected leave for their own health conditions or to care for that of a spouse, parent or dependent child.
• Instruct workers to stay home and report to the employer if they have symptoms of, were diagnosed with, or are awaiting test results for COVID-19.
• Create methods for tracking suspected and confirmed cases and follow current guidelines from the CDPH and CDC on when a worker may return to work after a suspected or confirmed case.
• Identify contact information for the local health department where the workplace is located and notify the department if there is a known or suspected outbreak. An “outbreak” may be defined differently by different local health departments. For example, Los Angeles and San Francisco counties requires businesses who are aware of three or more COVID-19 cases occurring within a 14-day period to report it to their local health department.

In addition to setting forth the above requirements, the Playbook also confirms that an employer may not identify or confirm the health status of individual employees or communicate about workers’ health to other workers, even in the case of a confirmed diagnosis of COVID-19, thereby affording the affected employee privacy as to their personal health information. However, the Playbook acknowledges that certain personal health information may be requested by local health departments (who are required to protect such confidential information) in order to investigate the report, perform contact tracing, and help contain a COVID-19 outbreak.

The CDPH’s FAQs generally track the information provided in the Playbook but provide important clarification that an employer may not require a worker to waive any Labor Code claims as a condition of returning to work.

Employers who have questions about the requirements for safely reopening in California or need strategic input regarding their workplace are encouraged to consult with any one of Pillsbury’s experienced attorneys in our Employment Group.

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