On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
The radical changes wrought by the Coronavirus Pandemic are likely to remain with us until a vaccine is developed and distributed on a world-wide basis. Until then, the shock waves that are presently rocking the economy will continue to jostle the American workplace with it.
One obvious change is the new priority on protecting the health and safety of employees. However, this has lately been thrust into intense competition with the intense pressure to blunt the unprecedented avalanche of unemployment claims and economic revival generally.
In recent weeks, several states have taken measures to relax government-mandated shelter-in-place orders, and tens of millions of employees are now returning to work. This poses an obvious potential threat to the safety of employees in the form of increased risk of infection. As a result, employers are well-advised to anticipate this, and develop contingency plans to accommodate the possibility of future outbreaks in the work place, and even the contingency of government-imposed shut-downs in hot spots in the event of new infections.
Because “an ounce of prevention is worth a pound of cure,” employers preparing for a future that is anything but uncertain should consider the following measures:
- Appoint a “Corona King or Queen” – the point-man/woman to coordinate all messaging and communication with workforce on Corona-related matters, to develop and manage all related activities, starting with the development of a written “Airborne Infectious Disease Prevention Policy,” or equivalent. This will include procedures for how employees relate to each other, customers, vendors, etc. In the event of a workplace outbreak or resurgence of infections, the Corona King/Queen has emergency powers to suspend operations, restrict workplace access, send employees home and authorize their return with medical clearance.
- Social Distancing Policy – to limit physical proximity between employees, customers and others. This may include plastic barriers, staggering schedules to minimize employees in the workplace, avoidance of meetings, promotion of hand washing protocol and prohibition of touching, including handshaking and sharing of equipment (headphones, keyboards, etc.)
- Customers and Visitors – procedures to protect employees from physical contact with customers, vendors and other third parties. This might include requiring third party visitors to wear face masks when interacting with employees.
- Cleaning/Disinfecting – procedures to assure employees and customers that the risk of infection is minimized. Includes hand-washing stations with microbial soap and warm water, disinfectant wipes, increased janitorial services to disinfect “high touch” surfaces, including door knobs, keyboards and common areas, as well as coordination with building maintenance to optimize ventilation system to prevent airborne transmission.
- Remote Work – procedures to address numerous issues, including accurate recording of working hours, meal periods and rest breaks. These would include reimbursement of cell phone, personal computer, travel and other new expenses associated with work from home. Related issues include workplace injury reporting, safe workplace issues that become inevitable when employees are distracted by children, pets, personal distractions, etc.
- Contingency/Emergency Planning – for emergency shutdowns mandated by government to address COVID-19 “hot spots.” This requires an emergency communication policy, pre-designation of “essential employees,” and the anticipatory purchase of personal protective equipment for them.
- Future Outbreaks in the Workplace – and procedures to ensure clear communication channels with Corona King/Queen to facilitate immediate, efficient reporting and response to issues concerning whether and what to report to authorities, immediate isolation of suspected exposed employees, who will conduct pre-departure interviews to identify other exposed persons, while providing safety protections for the interviewer and confidentiality for the exposed individuals. Procedures must be in place for removing potentially-infected employees and monitoring their self-isolation for risk assessment before considering medical clearance to return to work, and notifying the workforce of potential exposure without overreacting or divulging medical confidences. Issues of CDC-approved cleaning and disinfecting must be undertaken immediately with properly-protected and trained janitorial staff.
- Incorporate CDC Guidance – These include policies to encourage social distancing/spacing between employees, promote work from home, enhanced frequency of disinfection and improved building ventilation. Monitoring of employee symptoms is recommended, and includes procedures to check employees daily before work starts, for symptoms, and requiring sick employees to stay home. Employers should consider requiring all employees to wear face coverings in the workplace, to the degree this is feasible, while providing accommodations for disabled and other employees unable to do so.
- Workers’ Compensation – In a May 6, 2020 executive order, Governor Newsom established a rebuttable presumption that, in the future, any employees contracting the virus would be legally presumed to have contracted it in the workplace. As a result, they will be eligible for workers’ compensation benefits. Among other precautions, employers should require employees to immediately report to their employer that they have the virus. Because, at present, the presumption applies only to employees who become ill before July 5, 2020, employers should consider limiting the number of employees invited to return to work until after July 5.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over 38 years. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives. He has a remarkable record of success.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. http://www.jaygputnam.com/newsletter/
This newsletter is not intended as a substitute for legal advice and its content is provided for discussion purposes only. Any suggestions or recommendations must be assessed by competent legal counsel to be sure the unique requirements of each workplace are properly considered.