Today, May 12, 2020, Governor Newsom announced guidelines for businesses, including restaurants, to continue to open under the “expanded” Phase 2 in California.

Early Stage 2 business that were permitted to reopen on May 8 included:

 

  • Curb-side Retail
  • Manufacturers
  • Logistics
  • Childcare for those outside of the essential workforce

 

Expanded Stage 2 businesses that will be permitted to reopen if the county that they operate in obtain a variance from the state that would permit businesses to reopen include:

 

  • Office-based businesses (telework remains strongly encouraged)
  • Select services: car washes, pet grooming, and landscape gardening
  • Destination retail, including shopping malls and swap meets
  • Dine-in restaurants (other amenities, like bars or gaming areas, are not permitted in Stage 2)
  • Outdoor museums, and open gallery spaces and other public spaces with modifications
  • Schools with modifications

 

As of today, only two counties, Butte County and El Dorado County, have obtained the variance to permit expanded Stage 2 businesses to reopen in those counties.

The state’s guidance for dine-in restaurants is here: https://covid19.ca.gov/pdf/guidance-dine-in-restaurants.pdf

The state’s general checklist for dine-in restaurants is here: https://covid19.ca.gov/pdf/checklist-dine-in-restaurants.pdf

 

Businesses getting ready to re-open need to consider yet another item on the re-opening checklist: an Injury, Illness and Prevention Plan (IIPP) to address COVID-19. Title 8 of the California Code of Regulations section 3203 requires every employer to develop a written IIPP that protects employees from workplace hazards. Most California workplaces now must consider COVID-19 to be a workplace hazard that employees are exposed to.

Fortunately, the California Department of Industrial Relations Division of Occupational Safety & Health (DOSH), or Cal/OSHA, provides guidance and easy to modify forms and checklists that can help employers create and develop an IIPP that addresses COVID-19:

Step-By-Step Guidance On How To Create Your Own Written IIPP Customized To Your Workplace:

https://www.dir.ca.gov/dosh/etools/09-031/how.htm

Sample IIPP Forms and Checklists:

https://www.dir.ca.gov/dosh/etools/09-031/tools.htm

Cal/OSHA’s Consultation eTools with Action Kits:

https://www.dir.ca.gov/dosh/etools/etools.htm

Cal/OSHA’s Guide to Developing Your Workplace Injury and Illness Prevention Program With Checklists For Self-Inspection, describes the employers’ responsibilities in establishing, implementing, maintaining, an IIP Program:

https://www.dir.ca.gov/dosh/dosh_publications/iipp.html

An IIPP has 8 required elements:

  1. Responsibility
  2. Compliance
  3. Communication
  4. Hazard Assessment
  5. Accident/Exposure Investigation
  6. Hazard Correction
  7. Training and Instruction
  8. Recordkeeping

An effective IIPP is not just a paper program. For your IIPP to be effective, Cal/OSHA identifies four items to put into practice in your workplace:

  • Fully involve all employees, supervisors, and management
  • Identify the specific workplace hazards employees are exposed to
  • Correct identified hazards in an appropriate and timely manner
  • Provide effective training

Your workplace assessment needs to identify the workplace hazards posed by COVID-19 and measures to prevent or reduce the spread of the virus based on your operations. Basic measures that all employers should asses and implement are: cleaning and disinfecting; good hand hygiene; when and what PPE is needed or appropriate; physical distancing; and training employees on COVID-19 infection prevention methods. Implementing your prevention measures could incorporate CDC, OSHA, state and local guidelines and orders. Good sources to incorporate into the written IIP Plan include:

Cal/OSHA Guidance on Requirements to Protect Workers from Coronavirus:

https://www.dir.ca.gov/dosh/coronavirus/Health-Care-General-Industry.html

Federal OSHA Guidance on Preparing Workplaces for COVID-19 publication

Identifies different Coronavirus-related risk categories for workers, including higher-risk industries, and provides specific guidance for workplace safety for those industries.

https://www.osha.gov/Publications/OSHA3990.pdf

Los Angeles County Social Distancing Protocol:

http://www.publichealth.lacounty.gov/media/Coronavirus/HOO_Safer_at_Home_Order_for_Control_of_COVID_04102020.pdf.

As with everything related to this pandemic, be vigilant in keeping up-to-date on evolving rules and guidance, and modify your IIPP, as needed. We will continue to provide updates on COVID-19 issues impacting the workplace.

In an interesting and surprising turn of events, the Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing federal anti-discrimination laws in the workplace, removed the Frequently Asked Questions section from its website. The FAQ provided guidance on accommodating workers with medical conditions, issues of harassment and retaliation, and a “Return to Work” due to the movement towards opening the economy post-pandemic.

The EEOC is currently revising its previous guidance to ensure greater clarity and to avoid any misinterpretation by employers and the public-at-large.  As such, employers should monitor and check the EEOC’s website constantly, as the updated guidance could be published rather soon.  As of now, the EEOC’s website still provides information and Q&A section with respect to these issues, which employers can review here.

The EEOC has also consolidated its COVID-19 resources under a single page, which can be accessed here. As employers continue to navigate these murky waters, it is imperative that they remain attentive to all local, state and federal developments in dealing with these issues.  The better informed businesses are, the better prepared they will be when they decide to re-open.

A frequent question asked at our webinars is what liability employers might face from claims that employees contracted COVID-19 at work. Governor Newsom provided clarity on that question today.

Newsom issued Executive Order N-62-20, creating a rebuttable presumption that an employee’s COVID-19-related illness arose out of the course of employment for workers’ compensation purposes if the employee tests positive or is diagnosed “within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.” The presumption does not apply if the employee worked from home.

To qualify, the employee must either (1) test positive for COVID-19 within 14 days after performing work; or (2) be diagnosed with COVID-19 by a licensed physician within 14 days after performing work and have that diagnosis confirmed by further testing within 30 days of the diagnosis. Additionally, the date of injury must occur between March 19, 2020, and July 5, 2020.

For current employees, the practical reality of this Executive Order is that any test-confirmed COVID-19 illness will be presumptively compensable by workers’ compensation.

The Executive Order provides that the presumption “is disputable and may be controverted by other evidence.” However, if a claim is not rejected within 30 days of filing, the presumption can only be rebutted by evidence discovered subsequent to the 30-day period.

Employees claiming COVID-19-related illness are eligible for all workers’ compensation benefits, including “full hospital, surgical, medical treatment, disability indemnity, and death benefits.” There is no waiting period for temporary disability benefits, but an employee entitled to COVID-19 paid sick leave must exhaust that paid leave first.

Governor Newsom’s messaging on reopening California has emphasized a need to created an “Expanded Workforce Safety Net.”  This new Executive Order is a significant step in that direction.

Today, May 5, 2020, San Diego County Board of Supervisors unanimously agreed to adopt a framework developed by the Responsible COVID-19 Economic Reopening Advisory Group on how businesses should approach reopening.  The framework is made available on the County’s website here. 

 

The plan offers guidelines for businesses on how to protect employees and customers.  The County states businesses can use the plan to prepare for when the state permits certain businesses to open.  The County did not provide a timeline for when businesses can reopen, but have deferred to the Governor’s plan.  The County’s website informs businesses to check back for more information on May 8, 2020.  The County recommended businesses permitted to reopen in Phase 2 should prepare the plan.  If permitted to reopen, businesses will be required to post the plan, but will not be required to submit it to the County.

Essential businesses operating throughout California must pay careful attention to local Orders requiring social distancing protocols (SDPs).  With many of the original Orders set to expire at the beginning of May, many counties are extending their original SDPs with additional requirements.  Below is a list of five counties we have been receiving routine questions about details of each SDP:

1. Los Angeles County:

2. Long Beach:

3. San Diego:

4. San Bernardino County:

“Businesses shall identify and implement required measures for social distancing and infection control in each of their facilities.  If the measures identified and implemented are not effective in maintaining proper social distancing and infection control, additional measures shall be identified and implemented or the facility shall be closed.”

  • Requires a posting for certain “licensed facilities.”

5. San Francisco Bay Area:

A California appellate opinion issued yesterday offers a fact pattern and jury verdict familiar to employment counsel: A longtime employee resists a proposed change pushed by his new boss, citing an anxiety disorder; the new boss finds the claimed anxiety a dubious excuse; the boss learns the employee has been moonlighting and potentially using company resources for this side venture; and the boss decides to terminate the employee for violating the company’s conflict of interest rules. The employee sues and wins.

The San Bernardino jury’s verdict was no doubt painful to T-Mobile: $320,042 in economic damages, $700,000 for noneconomic damages and emotional distress, and $4 million in punitive damages (equal to one day of net income for T-Mobile in 2016). T-Mobile was also ordered to pay $480,315.00 in attorney’s fees to plaintiff, in addition to incurring its own fees and costs. The appellate court reduced the punitive damages to only $1.53 million, but if you value a day of your business’s profits, it is worth taking a few minutes to learn from this cautionary tale.

Background Facts

(The following facts are taken from the appellate opinion. Because the employee won at trial, the appellate court was required to consider the evidence in a light most favorable to the employee.)

From 2007 to 2014, Stephen Colucci was a store manager at a T-Mobile retail store in Ontario, CA.  In February 2014, Brian Robson became the new district manager overseeing various stores, including Colucci’s.

Robson planned to transfer Colucci to a mall kiosk location, but Colucci claimed an anxiety disorder made him unable to work in a crowded mall.  Robson was highly skeptical of Colucci’s condition–“this is the most ridiculous thing I’ve ever heard”–but Colucci obtained a doctor’s letter and T-Mobile’s HR advised Robson that he could not transfer Colucci to the mall kiosk.

In July 2014, Colucci complained to Robson that an associate was spreading inflammatory rumors about Colucci. After agreeing to investigate, Robson did nothing, and told Colucci he should “quit complaining” and that he had been “nothing but problems.”

Around the same time, a part-time sales associate informed Robson that Colucci had an outside business, had used a T-Mobile fax machine for the outside business, and required the associate to answer calls for that outside business while on duty for T-Mobile. The catch? 1. The sales associate had recently been disciplined by Colucci and wanted a transfer. (At trial, the associate’s statements were “largely discredited.”) 2. Colucci’s prior boss knew about the outside work, other T-Mobile employees had side businesses, and T-Mobile’s policy allowed occasional personal use of T-Mobile equipment.

Robson started an investigation, enlisting loss prevention for support.  One day before Robson and loss prevention visited the store to interview him, Colucci called T-Mobile’s “integrity line” to complain that his complaint to Robson was unresolved and left his work environment tense. When Robson arrived to interview Colucci, Colucci was experiencing back pain aggravated by anxiety over the tense work environment.  Colucci complained to Robson and requested medical leave, which Robson granted.

Two hours after Colucci left, Robson recommended to HR that Colucci be terminated for cause due to the conflict of interest, bypassing T-Mobile’s progressive discipline policy. The loss prevention manager assisting Robson later told the loss prevention team that Colucci had been “turned into a customer” (i.e., fired) because of his complaints or the way he acted.

What can we learn from this?

1. Beware the retaliation trap.

Discrimination is a well-understood risk in the workplace.  Harassment, especially sexual harassment, has been well-publicized lately.  But retaliation is and remains an underrated risk for employers.

Not all jurors are inclined to attribute discriminatory motive to employer conduct, but virtually everyone understands and acknowledges that people hold and act upon grudges. Employers need to be particularly attuned to potential retaliation claims where, as here, a supervisor wants to discipline an employee who complained about the supervisor, or a supervisor or management has made disparaging comments about the target of proposed discipline. Employers need to be proactive and clear that retaliation will not be tolerated.

2. Take all disability accommodation requests seriously

Robson’s disbelief of Colucci’s anxiety disorder is not uncommon. Whether or not you believe such disability claims are abused by employees, employers need to recognize that courts and juries are increasingly holding employers accountable for discriminating against or failing to accommodate employees asserting mental disabilities. T-Mobile properly accommodated Colucci’s anxiety by blocking his transfer to the mall kiosk, but Robson’s incredulity went unaddressed with costly results.

3. Investigate timely and completely

When an employee lodges a complaint, do not let it languish. An investigation should commence in a timely manner. Ask yourself today who would handle such a complaint, so that you can assess whether that person would be able to conduct a timely investigation. If that person is you, but your daily task list is bursting at the seams, what is the likelihood you can drop everything on short notice to address a complaint?

A workplace investigation must also be competent, which means (among many other things) interviewing all relevant witnesses. Here, T-Mobile’s investigation of the potential conflict of interest failed to achieve an interview of the accused employee. (T-Mobile’s investigation of Colucci’s complaints never even got off the ground).

4. Terminations for policy violations are not bulletproof

I see it a lot. A legal complaint or settlement demand comes in, and the potential client is insistent that its frivolous because the complaining employee was fired for cause. (All of my actual clients are, like my son and my favorite dog, perfect in every way.) It is difficult to rationalize paying money to a former employee you fired for misconduct.

Almost surely, some at T-Mobile felt this way about Colucci’s claim. But plaintiff’s counsel can chip away at the armor of an employee misconduct defense, as happened here.  Robson’s credibility was tainted by his comments and Colucci’s complaint against him. The determination that Colucci’s side hustle warranted discipline was weakened by evidence that other employees did the same thing. And the validity of the discipline was undermined by the failure to follow T-Mobile’s progressive discipline policy.

5. Consider a complaint hotline

Part of the appellate court’s reasoning for trimming the punitive damages award was T-Mobile’s “integrity hotline” for employee complaints, which evidenced that the company maintained policies and procedures to prevent workplace misconduct. A complaint hotline can undercut arguments that an employee felt he or she had no recourse to complain about harassment or mistreatment.

That said, make sure a complaint hotline works for your business. Such a hotline can be a double-edged sword if complaints are not acted on.

Many employers are confused about the requirements of when employees who have had COVID-19 or been exposed to COVID-19 can return to work.  They are rightfully confused because there are many different federal, state, and local guidelines being published the contradict each other.  So I wanted to take a step back and address the simple questions of when can an employee who has had COVID-19 return to work, and can employers require a doctor’s note from the employee prior to returning to work?

When can employees who had COVID-19 return to work?

The CDC has set forth that people who have had COVID-19 or have been caring for someone sick at home can stop home isolation under the following conditions:

  • If you will not have a test to determine if you are still contagious, you can leave home after these three things have happened:
    • You have had no fever for at least 72 hours (that is three full days of no fever without the use medicine that reduces fevers)
      AND
    • other symptoms have improved (for example, when your cough or shortness of breath have improved)
      AND
    • at least 7 days have passed since your symptoms first appeared
  • If you will be tested to determine if you are still contagious, you can leave home after these three things have happened:
    • You no longer have a fever (without the use medicine that reduces fevers)
      AND
    • other symptoms have improved (for example, when your cough or shortness of breath have improved)
      AND
    • you received two negative tests in a row, 24 hours apart. Your doctor will follow CDC guidelines.

Can employers require a doctor’s note for employees to return to work? 

The answer to this question depends on which set of guidelines one reviews.  OSHA and the CDC provide guidance that employers should not ask for doctor’s notes, but the EEOC’s guidance states employers can require doctor’s notes as well as employee testing before returning to work.

OSHA: Should not require doctor’s note.

OSHA has issued guidelines setting forth that employers should “not require a healthcare provider’s note for employee’s who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.”

https://www.osha.gov/Publications/OSHA3990.pdf (see page 11)

CDC: Should not require doctor’s note or testing.

CDC’s guidance is similar to OSHA’s guidance.  The CDC states:

Employers should not require a positive COVID-19 test result or a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work. Healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely manner.

However, the CDC then refers reader’s to the Department of Labor’s and the EEOC’s websites.

EEOC: Can require doctor’s note and testing.

Contrary to OSHA and the CDC, the EEOC provides that employers can require employees to provide a doctor’s note prior to returning to work.  The EEOC notes, however, that as a practical matter it may be difficult for the employee to obtain the doctor’s note, so “new approaches may be necessary” for employers to obtain some type of authorization from a health care provider permitting the employees to return to work.

As previously written about here, on April 23, 2020, the EEOC provided guidance that employers may choose to administer COVID-19 testing to employees before returning to work.

As always, employers need to also address their state and local ordinances to see if there may be any other requirements and ensure they are in compliance with these as well.


On Wednesday, April 29, the Los Angeles City Council adopted the Worker Retention and Right of Recall Ordinances.  During the April 22 Council meeting, the Ordinances were amended, among other things, to cover only certain businesses.  Specifically, only airport businesses, commercial property businesses, event center businesses, and hotel businesses (and restaurants within the physical premises of hotels) are covered by the Ordinances.

The Right of Recall Ordinance would now require covered employers to make a written offer of recall to a Laid Off Worker –as defined in the Ordinance– of any position which is or becomes available for which the worker is available.  To be qualified, the laid off worker must have either 1) held the same or similar position at the same site of employment at the time of the most recent separation, or 2) is or can be qualified for the position by providing the same training that a brand new hire would receive for the position.

The Worker Retention Ordinance would require the specific businesses listed above to retain certain workers if a change in ownership or control (such as a sale, acquisition, etc.) occurs within 2 years from the date of the COVID-19 emergency declaration.  Amongst other things, this Ordinance would require the “successor business” to hire from a preferential list provided by the “incumbent business” for at least 6 months after the successor business opens its operation to the public.  The Ordinance would also require the successor business to retain such workers for at least 90 days, and conduct performance evaluations after the 90-day period.

For a more detailed summary of both Ordinances, read our previous post here. The Ordinances are currently before Mayor Garcetti, who has until May 11, 2020 to approve or veto them.  As Mayor Garcetti previously expressed his intent of signing off on these Ordinances, it is very likely the Ordinances will be chartered and become effective rather soon.  We will continue to monitor any new developments.

Due to the effect COVID-19 has had on the economy and across all industries, Los Angeles City has been in the forefront of protecting the workforce by providing further benefits and protections to workers.  Simultaneously, however, new worker protections effectively translate into new burdens on employers.

Last week, the City Council addressed and amended two proposed ordinances: the Worker Retention Ordinance and the Right to Recall Ordinance.  These Ordinances would require certain businesses to continue to employ workers after a change in control (Worker Retention Ordinance) and make an offer of re-employment to a qualified laid off worker (Right to Recall Ordinance).  These Ordinances have not been finalized nor signed by the Mayor, and as such are not in effect as of today’s date.

Below is a brief summary of what the Ordinances would require, as currently drafted.

Right of Recall Ordinance

What would this Ordinance require?

A covered employer (see below) would be required to make a written offer of recall to a qualified Laid Off Worker (see below) of any position which is or becomes available after the Ordinance goes into effect.  The written offer must be sent to the qualified Laid Off Worker’s last known mailing address, electronic mail, and text message phone number.

The Laid Off Worker would have 5 days (decreased from 10 days) to accept or decline the offer of recall.

What employers would be covered under this Ordinance?

Previously, the Ordinance covered all employers that earned gross receipts in excess of $5,000,000 in 2019.  The amendment to the Right of Recall Ordinance narrows the businesses it would apply to. Now, only the following business –as defined in the Ordinance– would be subject to the recall requirements:

  • Airport Businesses;
  • Commercial Property Businesses (owner, operators, managers, or lessees of non-residential property that employ 25 or more janitorial, maintenance or security service workers);
  • Event Center Businesses (including concert halls, stadiums, sports arenas, convention centers, etc.); and,
  • Hotel Businesses (those with 50 or more guestrooms or that earned gross receipts in excess of $5,000,000 in 2019).

The Ordinance, however, excludes airlines and those businesses whose contract with the airport contain a pre-existing rehire requirement.  Similarly, only janitorial, maintenance and security workers of commercial property businesses would be covered by the Ordinance.

Although the Ordinance now excludes restaurants from its coverage, it is important to note that any restaurant physically located on hotel premises are covered.

Who would be a covered “qualified Laid Off Worker”?

Only Laid Off Workers are subject to the right of recall.  A Laid Off Worker is any person who:

  • performs at least 2 hours of work in a particular week within the City of Los Angeles for a covered employer;
  • worked for the employer for 6 months or more; and,
  • was laid off due to lack of business, reduction in workforce, or other economic non-disciplinary reasons on or after March 4, 2020. The Ordinance creates a rebuttable presumption that any lay off occurring on or after March 4, 2020 was due to a “non-disciplinary reason.”

Further, a Laid Off Worker is qualified if he/she:

  • held the same or similar position at the same site of employment at the time his/her most recent separation from active service with the employer; or,
  • is or can be qualified for the position with the same training that would be provided to a new worker hired for that position.

Would any type of worker be excluded from coverage?

The Ordinance explicitly excludes managers, supervisors, confidential employees or “a person who performs as their primary job responsibility sponsorship sales for an Event Center Employer” from coverage.

Does the Ordinance create a private cause of action?

Yes, the Ordinance would create a private cause of action for covered qualified Laid Off Workers, including reinstatement, lost pay and benefits, and punitive damages.

However, as amended, the Ordinance would impose conditions precedent on employees prior to filing a lawsuit against the employer:

  • the worker would be required to provide written notice to the employer delineating the specific provisions of the Ordinances that have been violated, as well as the facts supporting such allegations; and,
  • the employer would have 15 days from receipt of the notice to cure the alleged violations.

The Ordinance would also permit a court to award reasonable attorneys’ fees and costs to an employer who prevails and obtains a court determination that the worker’s lawsuit was frivolous.

Worker Retention Ordinance

What would this Ordinance require?

In general, the Ordinance would subject specific businesses (see below) to retain certain workers when a change in ownership or control occurs within 2 years after the declaration of emergency due to COVID-19.  In other words, the Ordinance would apply to businesses that have or will change ownership or control from March 1, 2020 through March 1, 2022.  The “incumbent” employer/business would be required to post, in a conspicuous place, a written notice advising employees/workers of the change in control within 5 business days following the

Specifically, the Ordinance would require that, within 15 days of the execution of an agreement to sell, acquire, etc. (a “transfer document”), the incumbent employer/business provide to the new successor business the name, address, date of hire and occupation classification of each worker.  The incumbent employer/business would be required to post, in a conspicuous place, a written notice advising employees/workers of the change in control within 5 business days following the execution of the transfer document.  The notice must remain on the premises for 6 months after the business is open to the public and under the control of the successor business employer.

The successor business would then be required to maintain a preferential hiring list of those workers, and hire from that list for 6 months after the new business opens to the public.

Similarly, for those workers that are hired from the list described above, the new successor business would have to retain each such worker for at least 90 days.  After the 90-day period, the successor business would be required to perform written evaluations for each employee.  If satisfactory, the successor business would then have to consider offering the worker continued employment.

What businesses would be covered under this Ordinance?

The covered businesses are identical to those under the Right to Recall Ordinance.  Only Airport Businesses, Commercial Property Businesses, Event Center Businesses, and Hotel Businesses would be covered under this Ordinance.

Which workers would be covered under this Ordinance?

Only those workers who are employed by the incumbent employer/business and

  • that have worked for the employer for 6 months or more;
  • whose primary place of employment is a covered business subject to a change in control;
  • who are employed or contracted to perform work functions directly by the incumbent employer/business or by a person who has contracted with the incumbent employer/business to provide services to that employer; and,
  • worked for the employer on or after March 1, 2020 and before the execution of the transfer document.

Would any type of worker be excluded from coverage?

The Ordinance explicitly excludes managerial, supervisory, or confidential employees from coverage.

Does the Ordinance create a private cause of action?

Yes, even after the amendment, the Ordinance would create a private cause of action for covered workers, including reinstatement, front or back pay, and the value of benefits the worker would have received under the former employer’s benefits plan.

Just as the Right to Recall Ordinance, however, this Ordinance would require that, prior to filing a lawsuit, the worker:

  • Provide written notice to either the current employer and/or the successor business employer of the specific provisions of the Ordinance alleged to have been violated, as well as the facts to support the alleged violations; and,
  • The current employer/successor business employer would have 15 days from receipt of the notice to cure the alleged violations.

Again, these Ordinances are not yet in effect and remain subject to further changes/amendments.  We will continue to monitor them closely, and will provide updates as this issue continues to develop.