Category Archives: COVID-19

Ohio COVID-19 Updates

Contributed by Michael Hughes, November 18, 2020

In response to the recent increased spread of Coronavirus in Ohio, Governor DeWine and the Ohio Department of Health have enacted several new Orders affecting all Ohio residents. Namely, in addition to existing protocols and guidelines for businesses, which remain in effect, the state has now instituted a 21-day curfew and restrictions for certain types of mass gatherings. 

State of Ohio

Statewide Curfew – Effective November 19, 2020

In order to help curb the spread of the coronavirus, the Ohio Department of Health has mandated a statewide curfew for all Ohio residents, from 10 PM to 5 AM daily, starting November 19, 2020 and lasting for 21 days. Notably, the curfew does not apply to those going to or from work, those who have an emergency, or those who need medical care. The curfew is not intended to stop anyone from getting groceries or going to a pharmacy. Picking up carry-out or a drive-thru meal and ordering for delivery are also permitted, but serving food and drink in person must cease at 10 PM.

Revised Order to Limit and/or Prohibit Certain Mass Gatherings – Effective November 17, 2020

Effective as of November 17, 2020, the Ohio Department of Health has instituted limitations on the following types of mass gatherings: wedding receptions, funeral repasts, and other events at banquet facilities. Those limitations are as follows:

  • No socializing or activities in open congregate areas and no dancing.
  • Guests must be seated at all times. However, traditional wedding reception events such as first dance, toasts, tossing the bouquet and cutting the cake are permitted.
  • If serving food and beverages, guests must be served at their seats. No self-serve buffets and no self-serve bar areas permitted.
  • Masks must be worn at all times unless actively consuming food or beverages.
  • No more than 10 people should be seated at a table and those individuals must be from the same household.

The order does not apply to religious observances; First Amendment protected speech, including petition or referendum circulators, and any activity by media; and to governmental meetings which include meetings that are required to be open to the public.

Existing COVID-19 Business Protocols and Guidance Remain in Effect

While the Ohio Department of Health has lifted many of the mandatory business requirements initially put into place in response to the COVID-19 pandemic, there are still several established workplace requirements. In general, all employers are required to:

  • Comply with state regulations on facial coverings, including the November 13, 2020 Order for Retail and Business Compliance for Facial Coverings throughout the State of Ohio.
    1. Require all employees to wear face coverings unless they are prohibited by law or regulation; in violation of documented industry standards; not advisable for health reasons; in violation of the business’s documented safety policies; or there is a functional/practical reason not to wear one. They also are not required for employees who work alone in an assigned work area.
    2. Practical reasons not to wear face coverings include, but are not limited to, high temperatures in facilities or employees separated by more than 6 feet on a manufacturing floor.
  • Comply with social distancing requirements of the U.S. Centers for Disease Control and Prevention and Ohio Department of Health, including, where possible:
    1. Designating 6 foot distances with signage, tape, or other means to allow for adequate social distancing between employees; this also applies to customers in lines.
    2. Having hand sanitizer and sanitizing products readily available for employees and any customers.
    3. Establishing separate operating hours for elderly and other vulnerable populations.
    4. Posting online whether a facility is open and how best to reach the facility and continue services by phone or in another remote manner.
  • Allow as many employees as possible to work from home by implementing policies in areas such as teleworking and video conferencing.
  • If employees do report to workplaces:
    • Actively encourage sick employees to stay home until they have recovered.
    • Guidelines from the Centers for Disease Control and Prevention for people with confirmed or suspected COVID-19 are as follows: 
    • Employees with symptoms (including those who have tested positive and those who have not been tested) should stay home until:
      • At least 10 days have passed since symptoms first began; AND
      • At least 24 hours have passed since there has been no fever without use of fever-reducing medication; AND
      • There has been improvement in other symptoms.
    • If an employee is severely immunocompromised, a health care provider may determine that a longer time frame is recommended.
    • Employees without symptoms who have lab-confirmed COVID-19 should stay home until at least 10 days have passed since the date of the positive test. However, if the employee develops symptoms in that time period, then the employee should follow the criteria for people with symptoms.
  • Ensure that your sick leave policies are up to date, flexible, and non-punitive to allow sick employees to stay home to care for themselves, children, or other family members. Consider encouraging employees to do a self-assessment each day to check if they have any COVID-19 symptoms (fever, cough, or shortness of breath).
  • Separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to the business until they have recovered.
  • Reinforce key messages — stay home when sick, use cough and sneeze etiquette, and practice hand hygiene — to all employees, and place posters in areas where they are most likely to be seen. Provide protection supplies such as soap and water, hand sanitizer, tissues, and no-touch disposal receptacles for use by employees.
  • Frequently perform enhanced environmental cleaning of commonly touched surfaces, such as workstations, counter tops, railings, door handles, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. Provide disposable disinfectant wipes so that commonly used surfaces can be wiped down by employees before each use.
  • Be prepared to change business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations).

In addition to the general guidance, there are specific guidance for certain sectors, including offices, health care, assisted living facilities, and bars and restaurants, which are available on the Ohio Department of Health website.

Local communities and municipalities are permitted to enact guidance or requirements. For example, the City of Columbus and Franklin County issued a COVID-19 Health Advisory, which generally follows many of the state guidelines. Accordingly, Ohio employers should work with experienced labor and employment counsel to confirm that they are in compliance with all applicable state, city/local, county and federal requirements and guidelines.

This blog will continue to monitor those developments and update as needed. For continued information regarding COVID-19 restrictions, visit SmithAmundsen’ s COVID-19 Resource Center or contact a member of our task force here: https://www.salawus.com/practices-covid19-task-force.html

St. Louis City and St. Louis County Impose Heightened COVID-19 Restrictions on Employers, Businesses, and Social Gatherings

Contributed by Brian Wacker, November 18, 2020

The State of Missouri has continued to resist imposing significant state-wide orders to combat the spread of COVID-19. However, with positivity rates on the rise and pressure increasing on health providers throughout the state, some localities have recently enacted enhanced restrictions on businesses and social gatherings to combat the spread. 

One such locality is St. Louis County, which enacted the following health orders, which went into effect on Tuesday, November 17, 2020:

State of Missouri
  • November 12, 2020 – “Safer At Home” Order
    • Residents are required to stay at home, unless to travel to and from work and other limited specific purposes such as shopping for groceries, education purposes or obtaining medical care
    • Social gatherings are limited to no more than 10 persons
    • Aside for defined business exceptions such as hospitals, public transit and schools, all businesses providing goods and services are limited to 25% or less of its permitted occupancy; all employees are required to wear face coverings and comply with social distancing requirements
    • Restaurants are limited to providing outdoor service, carryout and delivery
  • November 12, 2020 – Third Amended Quarantine and Isolation Procedures Order
    • All residents are required to regularly self-observe for COVID-19 symptoms and if, at any time, a person develops such symptoms, they are required to self-isolate, limit contact with others and seek medical advice and/or be tested for COVID-19
    • Residents who have been in close contact with COVID-19 positive individuals or who them themselves been exposed to COVID-19 is instructed to quarantine for a period of 15 days after the last exposure
      • Individuals in quarantine are permitted to walk outside, but are instructed to wear face coverings and not go within 6 feet of others
    • Residents who test positive and/or who have COVID-19 symptoms and who are awaiting results are instructed to isolate until cleared by the Department of Public Health for a period of 10 to 14 days, depending on individual factors
      • Individuals in quarantine are permitted to walk outside, but are instructed to wear face coverings and not go within 6 feet of others
  • November 12, 2020 – Second Amended Order Requiring Members of Public and Employees to Wear Face Coverings – “Strengthened Face Covering/Mask Order”
    • Face masks are required to be worn at all times by:
      • Anyone over the age of 5 years old when present at any business or public accommodation (indoor or outdoor)
      • Anyone over the age of 5 years old in public spaces when anyone outside that person’s household is present
      • All students from kindergarten through high school, except for defined exceptions such as when eating meals or playing sports in compliance with the department’s youth sport guidelines
      • Anyone working out at a gym or fitness facility
    • Face masks are not required to be worn by:
      • Children under the age of 2
      • Children between the ages of 3 and 5 when supervised by an adult
      • Anyone with health conditions which prohibit wearing a mask, or who have trouble breathing while wearing a mask
      • Anyone at a restaurant or public accommodation when eating or drinking, while still maintaining social distance requirements of separate orders
      • Anyone playing a sport or exercising alone

While not as extensive, St. Louis City also issued an additional order this week, which went into effect on November 14, 2020. Specifically, it reaffirmed all prior orders already in effect in the city and further placed the following restrictions on private gatherings:

  • Private gatherings of more than 10 attendees are prohibited
  • The city recommends any gatherings with less than 10 attendees be limited to no more than 1-2 households, and that those households remain consistent throughout the gathering
  • The order further clarifies that it also applies to businesses, schools and government offices, all of which are still required to require face masks and to require social distancing and hygiene measures of employees and other individuals

As has been the case throughout the pandemic, these measures are always subject to modification based on conditions and potential legal challenges. That is especially true in Missouri where localities are enacting their own sometimes-inconsistent orders in the absence of state-wide measures. Accordingly, Missouri employers should consult with experienced labor and employment counsel to ensure that they are in compliance with all current state, city/local and county-wide orders.

This blog will continue to monitor those developments and update as needed. For continued information regarding COVID-19 restrictions, visit SmithAmundsen’ s COVID-19 Resource Center or contact a member of our task force here: https://www.salawus.com/practices-covid19-task-force.html

Wisconsin COVID-19 Updates

Contributed by Peter Hansen, November 18, 2020

Although Wisconsin has no statewide or industry-specific requirements, Governor Evers’ November 10, 2020 Executive Order “strongly encouraged” all businesses to take a number of precautions in response to the COVID-19 resurgence, including:

  • Hold meetings and collaborate online or by phone, even if staff are physically present at the worksite
  • Alternate work teams or stagger shifts
  • Require staff, customers, and the public to wear masks, and require social distancing of 6 feet between all individuals at the worksite
  • Prevent staff from entering the worksite if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19
  • Increase standards of facility cleaning and disinfection of all areas, emphasizing “high-touch areas” including door handles, railings, restrooms, buttons, office equipment, tools, payment devices or cash registers, and counters
  • Post signage reminding staff and customers of safe business practices, social distancing requirements, hand hygiene, and cough/sneeze etiquette
  • Where possible, offer curbside pick-up and drop-off, and delivery of goods and services
  • Where possible, offer online or phone payments, appointments, and reservations
  • Cease door-to-door solicitation
State of Wisconsin

Wisconsin agencies have also issued some guidance to help employers during the COVID-19 resurgence, including the Wisconsin Economic Development Corporation’s industry-specific guidance and the Wisconsin Department of Health Services’ guidance for Preventing and Managing COVID-19 Outbreaks in the Workplace.

Local communities and municipalities are permitted to enact requirements and several Wisconsin municipalities have issued their own emergency orders, including Madison & Dane County, City of Milwaukee, Eau Claire City, and the City of Wausau. Accordingly, Wisconsin employers should consult with counsel to verify that they are in compliance with all current state, city/local and county-wide orders.

For continued information regarding COVID-19 restrictions, visit SmithAmundsen’s COVID-19 Resource Center or contact a member of our task force here: https://www.salawus.com/practices-covid19-task-force.html

Illinois’ NEW COVID-19 Mitigation Plan to Impact Virtually ALL Employers – Effective November 20, 2020

Contributed by Carlos Arévalo, November 18, 2020

New COVID-19 cases are surging in Illinois, and Illinois is ramping up more restrictions by instituting additional measures throughout the state. Generally, these measures have the objective of limiting gatherings and encouraging people to stay at home, but do not rise to the level of a stay-at-home order. Illinois’ Phase 4 remains in place with the following new restrictions:

State of Illinois
  1. Manufacturing (Implementation of safety guidelines): 
    • Additional COVID-19 training for all employees (even if previous training occurred)
    • Employers to coordinate with IDPH to implement testing protocols and contact tracing
    • Face coverings at all times, except for safety purposes
    • Only manufacturing staff and key personnel allowed in facilities
      • Non-production employees must work remotely
      • Non-essential staff and visitors are not permitted
      • Exemptions only for critical equipment repairs, supply deliveries and safety reasons (“critical visitors”)
    • All critical visitors must have an Employee Health and Safety (EHS)-approved risk-assessment done in advance, including travel history, tracking, and temperature check prior to entrance
    • Implement additional workstation realignment when feasible
    • Stagger and space shifts and entrances
    • Station sanitation required at beginning and ending of shifts
    • Suspension of COVID-19 incentive pay (promote staying home when sick or showing symptoms)
    • Implement temporary leave policies to accommodate sick workers
    • Develop and implement safety protocols for employee travel vans to promote spacing, require face coverings, temperature checks, air circulation, and vehicle sanitization
  2. Bars/Restaurants (including private and country clubs)
    • Closed between 11 PM and 6 AM
    • Outdoor service only
      • Patrons, limited to groups of 6, should be seated at tables (6 feet apart)
      • No multiple parties at tables
      • Reservation required (no standing/congregating while waiting)
    • No service at bar
    • Indoor gaming terminals must suspend operations
  3. Offices
    • All employees who can work remotely should do so
  4. Retail Operations
    • Operation at 25% capacity for general merchandise stores, “big box” stores that offer groceries and pharmacy, and convenience stores
    • Operation at 50% for grocery stores and pharmacies may operate at up to 50% capacity
    • Curbside delivery and pickup options wherever possible
    • When in-store shopping is necessary, promote efficient trips and consistent circulation
  5. Hotels
    • Occupancy limited to registered guests only
    • Fitness centers should be closed, or operated only on a reservation model, with capacity limited to 25% of the maximum occupancy for the room
    • Grab and go food allowed
    • Event and meeting space closed
  6. Personal Care Services
    • Operate at lesser of 25 clients or 25% capacity
    • Face coverings required (suspension of facials, beard trims and other face services)
    • Physical, occupational and massage therapy allowed as deemed necessary by a medical provider:
      • Appointments must be spaced by a minimum of 15 minutes and facilities should take steps to sanitize and circulate clean air through service rooms before and after each service
    • Virtual consultations recommended
  7. Health/Fitness Facilities
    • 25% capacity or less
    • No indoor group classes
    • Face coverings must be worn at all times, including while engaged in individual exercise regardless of person or machine spacing
    • Reservations required
    • Locker room areas to be closed
  8. Meetings and Gatherings
    • Limit home gatherings to household members
    • No gatherings at meeting rooms, banquet centers, private party rooms, private clubs and country clubs
    • No party buses
    • Funerals are limited to 10 family members of the decedents, not including staff
  9. Recreational and Sporting Activities (includes park districts and travel leagues)
    • Pause all indoor group sporting and recreational activities (youth and adult recreational sports)
    • Individual training may remain (with facility reservation)
    • Outdoor sports and recreation allowed, but limited to 10 persons or less with social distancing (no locker rooms)
    • Face coverings required for all activities at all times
  10. Gaming, Theaters, Museums, and Indoor Amusement
    • Gaming and casinos closed
    • Indoor recreation centers, including theaters, performing arts centers and indoor museums and amusement centers closed
    • Live streaming of performances encouraged (social distancing of performers and minimum operational staff)
    • Outdoor activities (reservations required) allowed at 25% capacity or less
    • Outdoor group activities limited to 10 persons or less (participants must wear face coverings at all times)

Previously exempt functions (i.e. infrastructure, governments, logistics and warehousing etc.) may continue regular operations, but Illinois is encouraging voluntarily and proactive application of mitigation steps whenever possible.

As with all matters involving COVID-19, these mitigation measures are fluid and subject to change. We will continue to monitor and update as needed. For continued information regarding COVID-19 restrictions, visit SmithAmundsen’s COVID-19 Resource Center or contact a member of our task force here: https://www.salawus.com/practices-covid19-task-force.html

Indiana’s New COVID-19 Restrictions

Contributed by Suzannah Wilson Overholt, November 18, 2020

Indiana Governor Eric Holcomb announced new coronavirus restrictions on November 13 that took effect on November 15, 2020 and continue through December 12, 2020. All businesses are allowed to be open subject to the restrictions in Executive Order 20-48. Executive Order 20-48 implements a county by county assessment that determines various measures, including crowd sizes, depending on the level of COVID-19 in that county (e.g. 25 people in red counties and 50 people in orange counties, with larger events needing approval from health officials). Businesses in higher risk counties are encouraged to take measures to ensure social distancing and protect their workforce.

State of Indiana

Indiana’s COVID-19 Response Requirements for November 15, 2020 to December 12, 2020, include the following:

  • Hoosiers who test positive for COVID-19 are required to quarantine.
  • Social distancing is required except with members of your own household.
  • Face shields are encouraged for individuals with such health/physical conditions.
  • Face coverings are required for individuals over two years of age who do not have a health or other condition that makes wearing a mask an undue risk.
  • Face coverings are required in indoor public spaces, outdoor spaces where social distancing is not possible, while using public transit, and in all schools.
    • NOTE: The requirement does not apply while eating or being seated at a restaurant to eat, while exercising and maintaining social distancing, or attending a church service.
  • All customers in restaurants and bars are required to be seated, and tables, counters, or other seating arrangements must be spaced six feet apart.
  • Hospitals are encouraged to reprioritize or postpone non-emergent procedures. 
  • For most counties (orange), attendance at indoor school events is limited to 25% capacity. 
  • Recreational sporting leagues are limited to participants and required personnel. 

Communities are permitted to enact more stringent restrictions. Indianapolis continues to do so. For continued information regarding COVID-19 restrictions, visit SmithAmundsen’s COVID-19 Resource Center or contact a member of our task force here: https://www.salawus.com/practices-covid19-task-force.html

Can I Require My Employees to Get the COVID -19 Vaccine?

Contributed by Suzannah Wilson Overholt, November 12, 2020

Medicine doctor and vaccine dose syringe in laboratory, microbiology and pharmaceutical research.

With the prospect of an FDA approved COVID-19 vaccine on the horizon, employers are already wondering whether they will be able to require their employees to get the vaccine. Because the pandemic has caused changes in other workplace rules, the answer to this question is not clear.

The Americans with Disabilities Act (ADA) generally prohibits employers from mandating that employees receive any vaccinations unless they are job-related, consistent with business necessity, and no more intrusive than necessary. This is ordinarily a difficult standard to meet unless the employer is part of the healthcare field. However, due to the current circumstances of the COVID-19 pandemic and the fact that an individual with COVID-19 is considered to pose a direct threat to the health of others, the EEOC may allow mandatory COVID-19 vaccines in workplaces beyond healthcare.  This conclusion is supported by the fact that the EEOC has already allowed employers to screen employees for COVID-19 on this same basis.

  While employers may be permitted or able to require employees to get the vaccine, employers should carefully consider the potential legal and employee morale implications and complications.  A Gallup poll recently showed just half of Americans would be willing to get a COVID-19 vaccine that the FDA approved, which is less than were willing to do so this past summer. These poll results indicate that a large number of employees will likely be reluctant to get the vaccine – at least initially. Therefore, enforcing a vaccine mandate, i.e. telling workers they have to have the vaccine or be fired, could be difficult if a large number of employees refuse to comply.  

If the EEOC authorizes mandatory COVID-19 vaccines anywhere in the workplace, employers should likely assume that the same restrictions that apply to mandatory vaccines in the healthcare field now will apply to all workplaces.  Currently, the EEOC requires healthcare employers to consider exemptions for employees who cannot receive vaccines for reasons related to disability, pregnancy, or religion. Employers analyze each request for exemption on a case-by-case basis, including reviewing the employee’s job position as well as the employee’s particular religious belief or medical documentation corroborating the disability at issue.  For more about these exemptions and the analysis that goes with them, see our previous blog on this topic, “Navigating the Legal Risks of a Mandatory Vaccine Program.”

As long as there continues to be widespread concern about the safety of a COVID-19 vaccine and no specific authorization from the EEOC to allow employers to mandate that employees have the vaccine, employers would be wise to continue to require masking, proper hygiene and social distancing.  Employers may also stress the importance of getting a flu shot and encourage employees to get one by subsidizing the cost, allowing paid time off to get one, or offering flu shots at the workplace to reduce any inconvenience. 

We will continue to monitor and report on guidance from the CDC, EEOC and other federal agencies for developments regarding the COVID-19 vaccine.

SAMPLE Questionnaire and HR Checklist for Confirmed COVID-19 Cases

Contributed by Jeff Risch, November 6, 2020

As new information unfolds surrounding our understanding of COVID-19, and seeing that the odds appear to be increasing on who may actually get the virus, employers need to be vigilant in examining whether or not an employee contracts the virus at work or in the course of their employment.  In order to assist employers in this exercise and help them possibly defend against legal challenges later (including workers compensation claims), the following updated questionnaire and HR checklist may be useful. The questionnaire and checklist should be kept confidential and used only by HR professionals.

Sample Questionnaire and HR Checklist

Can you Ask Employees Medical Questions during a Pandemic? The EEOC’s Guidance on Complying with the ADA during COVID-19

Contributed by Allison P. Sues, October 26, 2020 

COVID-19 Screening Questionnaire form with medical mask and a pen on it. Healthcare and medical concept. Closeup

As COVID-19 rates are rising throughout the country, employers may want to review the safety measures they are taking to prevent spreading the coronavirus in the workplace. The U.S. Equal Employment Opportunity Commission recently released additional guidance on the interplay between COVID-19 and an employer’s legal obligations under the Americans with Disabilities Act. Key questions and answers regarding steps that employers can lawfully take to safeguard their workplace are summarized below:

  • May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19?  Yes. An employer may ask all employees who are entering the workplace if they have been tested for COVID-19 or have symptoms associated with COVID-19.  An employer may prohibit an employee from physically entering the workplace if he has either tested positive or has symptoms.  Employers may not ask these same questions for employees who are working remotely because soliciting this information must be for the purpose of eliminating a direct threat to the health of other employees, and remote workers cannot pose this sort of threat to employees physically present in the workplace.
  • May employers ask only certain employees about COVID-19 testing or symptoms as opposed to asking all employees?  Yes.  However, the employer must have a reasonable belief based on objective evidence that the specific employee asked may have COVID-19. For example, the employee may be objectively exhibiting COVID-19 symptoms such as a persistent cough.
  • May an employer ask an employee who is physically coming into the workplace whether he has been in contact with anyone who has tested positive for COVID-19 or who has symptoms associated with COVID-19?  Yes.  Employers must make sure that they frame this question as asking for exposure to anyone, not specifically asking about family members.  The Genetic Information Nondiscrimination Act (“GINA”) prohibits employers from asking about employees’ family members’ medical conditions.  Asking about exposure to anyone – beyond just family members – is also a better query because it is more inclusive and better designed to understand an employee’s possible exposure. 
  • May an employer bar an employee from entering the workplace if he refuses to have his temperature taken or to answer questions related to possible COVID-19 exposure or symptoms?  Yes.  Before barring entry, an employer should explain its screening process in an attempt to persuade the employee to comply.  For example, an employer may assure the employee that the medical information collected from the screening is kept confidential and that the employer is simply following health screening recommendations from the CDC.
  • May an employer ask for additional information if an on-site employee calls in sick?  Yes.  During this pandemic, an employer may question an employee about their symptoms if they regularly or occasionally work onsite and report feeling sick.  Relatedly, an employer may ask an employee why they did not report to work if the employee calls off without providing a reason.
  • May an employer ask employees about travel during the pandemic?  Yes.  If the CDC or local public health officials recommend that people quarantine after visiting certain locations, an employer may ask its employees if they have traveled to those locations for work-related or personal travel.

Time to Revisit Your Contact Tracing Protocols after CDC Redefines Close Contact as 15-Minutes of Cumulative Exposure

Contributed by Michael J. Faley, October 22, 2020

15 Minutes Clock Icon. Vector Fifteen Minute Symbol Isolated on White Background.

The US Centers for Disease Control and Prevention (CDC) has revised its guidelines to define a close contact with a COVID-19 carrier to include several brief exposures. The CDC now defines “close contact” with an infected person as “[s]omeone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.”  The change now means that the 15-minutes of exposure time includes shorter interactions added together over a 24-hour period, including, for example, three 5-minute exposures for a total of 15 minutes.

The CDC readily acknowledges that it is difficult to precisely define what really constitutes “close contact,” but advises that 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to think about when deciding whether close contact has occurred include: 

  • The proximity of the individuals (closer distance likely increases exposure risk);
  • The duration of exposure (longer exposure time likely increases exposure risk);
  • Whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding);
  • If the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting); and
  • Other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors).

The CDC further advises that “[b]ecause the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE.  At this time, differential determination of close contact for those using fabric face coverings is not recommended.”

The new guidelines seemingly add another layer of complexity to the contact tracing process. Nonetheless, employers should take a look at their COVID-19 policies and contact tracing protocols and incorporate the CDC’s revised definition of close contact. Employers should also be sure to check their local and state guidance.

Your CA Fast Five – Highlights on Five Major Changes to California’s Employment Laws that You Need to Know Right Now

Contributed by Carlos Arévalo and Michael Faley, October 5, 2020

Wooden judge gavel with USA state flag on sound block – California

While many California employers are challenged on multiple fronts at the moment from the ongoing pandemic and wildfires, they nonetheless need to be mindful of new employment law measures recently signed by Gov. Gavin Newsom. The major changes include stronger family leave protections, new COVID-19-related reporting requirements and rules helping essential workers get Workers’ Compensation, tighter gig-work rules, and data collection requirements to help track race and gender pay gaps. 

1.  New Family Leave Law

On September 17, 2020, Gov. Newsom signed a bill that gives California employees at smaller businesses greater family and medical leave protections.  According to Gov. Newsom, “[t]he COVID-19 pandemic has only further revealed the need for a family leave policy that truly serves families and workers, especially those who keep our economy running.”  

Under Senate Bill 1383, employers with five or more employees must offer 12 weeks of unpaid time off for family or medical leave as of January 1, 2021. The bill also mandates that the companies must continue employer-paid health benefits for each employee who takes leave.  The reasons for leave include time to care for a newborn, a sick loved one or themselves, and now expands leave to include caring for grandparents, grandchildren, and siblings in addition to the current requirement covering an employee’s parent, child, and spouse or domestic partner. California law previously only required, for example, companies with 50 or more employees to provide 12 weeks medical leave. 

The law further calls for employers to grant spouses who work for the same company with 12 weeks of family leave each. Employers will not be able to compel parents to split their leave.

2. COVID-19 Reporting Requirements

On January 1, 2021, California employers’ COVID-19 reporting requirements will change.  Under Assembly Bill 685, employers will need to notify workers that they may have been exposed to COVID-19 within one business day if an employee tests positive.  The law requires written notice to all employees and subcontracted employees who were on the premises at the same worksite within the “infectious period.”  The notice must contain information identifying the COVID-19 related benefits that the employee(s) may receive, and the company’s disinfection protocols and safety plan to stop any further exposures.   

Under the new measure, companies will be further required to notify their local public health department if the number of known COVID-19 cases qualifies as a “COVID-19 outbreak,” as defined by the California State Department of Public Health.  Companies will have 48 hours to send notice to the public health department.  The law specifically empowers California’s Division of Occupational Safety and Health (Cal/OSHA) to shut down a worksite if the virus poses an “imminent hazard.”

Employers should strongly consider developing and implementing a written COVID-19 action plan to comprehensively address prevention, outbreak containment and employee rights and obligations.

3. Workers’ Compensation Changes for Essential Workers

Gov. Newsom also signed into law Senate Bill 1159 addressing workers’ compensation for certain essential workers.  The Bill takes effect immediately and remains in place through January 1, 2023 and creates a “disputable presumption” that illness or death related to COVID-19 arose out of and in the course of employment and is compensable, under certain circumstances. The Bill also requires an employee to exhaust paid sick leave benefits and meet specified certification requirements before receiving any temporary disability benefits or, for police officers, firefighters, and other specified employees, a leave of absence. The Bill would also make a claim relating to a COVID-19 illness presumptively compensable after 30 days or 45 days, rather than 90 days. Until January 1, 2023, the bill would allow for a presumption of injury for all employees whose fellow employees at their place of employment experience specified levels of positive testing, and whose employer has 5 or more employees.

The Bill does state that the “place of employment” does not include an employee’s residence if they are working at home.

The compensation to be awarded for injury pursuant to this Bill includes full hospital, surgical, medical treatment, disability indemnity, and death benefits.

4. Freelancer Exemptions Expansion

As many of our readers may recall, effective January 1, 2020, AB 5 codified what has been known as the “ABC” test, which is commonly used to determine whether a worker is an employee as opposed to an independent contractor.  Specifically, under AB 5, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied:

  1. The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  2. The person performs work that is outside the usual course of the hiring entity’s business.
  3. The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

After the enactment of AB 5, Uber filed a federal lawsuit challenging the law’s constitutionality. Uber, Lyft and others also championed Proposition 22, a ballot initiative in the November 2020 election to define app-based transportation (rideshare) and delivery drivers as independent contractors. 

In response to AB 5, Gov. Newsom signed into law AB 2257, a bill intended to ease some of AB 5’s restrictions by creating a number of exemptions that allow freelance writers, photographers, translators and musicians to continue working as independent contractors, rather than employees.  For instance, AB 2257 eliminates a 35-submission cap for freelance writers and photographers – current rules dictated that California-based freelancers who contribute more than 35 submissions to an outlet per year must be reclassified as an employee.  In addition, translators, appraisers, and registered foresters have been added to the “professional services” exemption. The “professional services” exemption currently covers graphic designers, travel agents and marketers, among others.  Finally, AB 2257 allows music industry workers, including recording artists, songwriters, producers, promoters and many others, to continue working as freelancers.  AB 2257 went into effect as of its passage.

5. Collecting Pay Gap Data

Senate Bill 973 requires that on or before March 31, 2021, and on or before March 31 each year thereafter, a private employer that has 100 or more employees must submit a pay data report to the Department of Fair Employment and Housing (DFEH) that contains specified wage information. This Bill requires that the information is to be made available in a prescribed format. DFEH then has to maintain the pay data reports for a minimum of 10 years, and it is unlawful for any officer or employee of the DFEH to make public in any manner any individually identifiable information obtained from the report prior to the institution of certain investigation or enforcement proceedings. The Bill also requires the Employment Development Department to provide DFEH, upon its request, the names and addresses of all businesses with 100 or more employees.

The pay data report must include information about the number of employees by race, ethnicity, and sex who are in executive or senior level, professional, technician, and administrative positions.  Data should also include the same information for sales, craft and services workers as well as for laborers and helpers.

If an employer submits a copy of its Employer Information Report, otherwise known as an EEO-1 Report, containing the same or substantially similar pay data information required under the Bill, then the employer will be in compliance with the Bill.

Failure to submit the required report may result in the DFEH seeking an order requiring the employer to comply with these requirements, and pay the costs associated with seeking such an order.

In summary, California employers can be proactive and prepare for these amendments by (1) reviewing and updating employee classifications as well as existing policies and practices to ensure current compliance, (2) collecting the necessary information, if the employer does not already have it, to address the new reporting requirements, and (3) implementing necessary processes to address these developments. For our part, we will continue to monitor and communicate further developments as they occur.