As August comes to a close there are major developments for California employers.  Of primary note, the Governor set forth a new four-tiered system plan for businesses to reopen, which becomes effective on Monday, August 31, 2020.  There was additional DOL guidance issued this week regarding the FFCRA and paid leave once schools reopen, a disagreement between Governor Newsom and the CDC on testing (and what does this mean for employers), and what the future of Uber and Lyft may be in California:

1. Governor Newsom Announces New Plan for Reopening California

Today, August 28, 2020, Governor Newsom announced new plan to reopen California.  The plan set forth different restrictions for different industries base on a four-tiered structure (purple, red, orange, and yellow) based on new cases and positive tests.  Businesses can look up the requirements for their industry here based on which tier applies to the county they are operating in here.

As of August 31, 2020, counties in the Widespread (purple) tier may open some businesses and activities with modifications, including all retail, shopping centers at maximum 25% capacity, and hair salons and barbershops indoors.  Local counties can still limit any reopening plans if the county decides to do so.

The new plan sets forth the following reopening requirements for restaurants, wineries and bars based on the county’s designation (widespread, substantial, moderate, or minimal):

Widespread (purple):

    • Restaurants and wineries: Outdoor only with modifications
    • Bars, breweries, and distilleries: Closed

Substantial (red):

    • Restaurants:
      • Indoor with modifications
      • Capacity must be limited to 25% or 100 people, whichever is less
    • Wineries: Outdoor only with modifications
    • Bars, breweries, and distilleries: Closed

Moderate (orange):

    • Restaurants:
      • Indoor with modifications
      • Capacity must be limited to 50% or 200 people, whichever is less
    • Wineries:
      • Indoor with modifications
      • Capacity must be limited to 25% or 100 people, whichever is less
    • Bars, breweries, and distilleries: Outdoor only with modifications

Minimal (yellow):

    • Restaurants:
      • Indoor with modifications
      • Capacity must be limited to 50%
    • Wineries:
      • Indoor with modifications
      • Capacity must be limited to 50% or 200 people, whichever is less
    • Bars, breweries, and distilleries:
      • Indoor with modifications
      • Capacity must be limited to 50%

The plan sets forth that hotels and lodging (tourism and individual travel) may also open with modifications:

Widespread (purple): Open with modifications

Substantial (red): Open with modifications

Moderate (orange):

    • Open with modifications
    • Fitness centers can open to 25% capacity
    • Indoor pools can open

Minimal (yellow):

    • Open with modifications
    • Fitness centers can open to 50% capacity
    • Indoor pools can open
    • Spa facilities can open

The requirements for each industry are set forth on California’s website here.

2. Department of Labor Updates FAQ on Families First Coronavirus Response Act

On August 27, 2020, the Department of Labor (DOL) issued three additional FAQs for the FFCRA.  The three new FAQs address FFCRA paid leave issues for employees with children returning to school:

FAQ #98 – My child’s school is operating on an alternate day (or other hybrid-attendance) basis. The school is open each day, but students alternate between days attending school in person and days participating in remote learning. They are permitted to attend school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances? 

FAQ #99 – My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances?

FAQ #100 – My child’s school is beginning the school year under a remote learning program out of concern for COVID-19, but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. May I take paid leave under the FFCRA in these circumstances?

3. California’s Department of Fair Employment and Housing (DFEH) Employment Law FAQ

Employers are reminded to review their current obligations under California law.  The DFEH updated its FAQs for California employers on July 24, 2020.  The FAQs address:

  • COVID-19 Inquiries and Protective Equipment
  • Employees with COVID-19 Symptoms or Infection
  • Job-protected Leave
  • Reasonable Accommodations For Employees With a Disability/Vulnerable Populations

The DFEH’s updated FAQs can be viewed here.

4. Governor’s refusal to follow CDC COVID-19 testing guidelines – how does this impact employees and employers?

On August 24, 2020, the CDC updated guidance regarding when individuals should be tested. The updated guidance stated that individuals who have had close contact (within 6 feet) of a person with COVID-19 for at least 15 minutes, and who do not have symptoms, “do not necessarily need a test unless you are a vulnerable individual or your health care provider or State or local public health officials recommend you take one.”

Governor Newsom came out against the revised guidance and stated California will not comply with the CDC’s new guidance.  Newsom said that he does not agree with the CDC guidance and said it is not the policy in the state of California.

But what does this mean for individuals and employers in California?  There is not much of an impact for employees and employers.  There is no law that requires individuals or employees to be tested for COVID-19 – individuals may refuse to be tested and employers are not legally required to administer tests to employees.  Both the CDC guidance and the state of California guidance is simply that – guidance.

5. Uber’s and Lyft’s future in California

There has been a lot of media attention on the possibility that Uber and Lyft may shut down operations in California by August 20, 2020.  However, the shutdown was avoided when a California appeals court granted the companies’ request to continue to operate with independent contractors while they appeal a lower court’s order requiring them to reclassify their drivers as employees.  The litigation involves California’s AB 5 that took effect in 2020, making it more difficult for employers to classify workers as independent contractors.  While this legal fight makes it way through the courts, California will vote on Proposition 22 on November 2, 2020, which would grant app-based transportation workers and delivery companies from AB5 and provide other benefits to the workers.