On July 24, 2020, the California Department of Public Health (“CDPH”) issued guidance entitled “COVID-19 Employer Playbook For a Safe Reopening.” The CDPH then revised the 32-page Employer Playbook a week later, on July 31st. A link to the most up-to-date guidance is available here.
The stated purpose of the Employer Playbook is to help California employers plan and prepare for reopening their business and to support a safe, clean environment for workers and customers. A summary of the key provisions of the Employer Playbook is discussed below.
How to Open Safely
According to the CDPH, business operation decisions should be based on both the level of disease transmission in the community and a company’s readiness to protect the safety and health of its workers and customers. As such, the CDPH advises that all employers should collaborate with workers and unions to effectively communicate important COVID-19 information and must implement (and update as necessary) a plan that:
- Is specific to their workplace
- Identifies all areas and job tasks with potential exposures to COVID-19
- Includes control measures to eliminate or reduce such exposures
- Maintains healthy business operations
- Maintains a healthy work environment
- Provides effective training for workers, and
- Encourages workers to give input into an effective workplace plan
Additionally, before reopening, all facilities must:
- Perform a detailed risk assessment and create a work site-specific COVID-19 prevention plan
- Train workers on how to limit the spread of COVID-19, including how to screen themselves for symptoms and when to stay home
- Set up individual control measures and screenings
- Put disinfection protocols in place
- Establish physical distancing guidelines
- Establish universal face covering requirements (with allowed exceptions) in accordance with CDPH guidelines
The Employer Playbook also cites to industry-specific guidelines and checklists to help employers as they reopen their businesses.
Managing an Outbreak and Returning to Work
The CDPH provides guidance for employers (outside of the healthcare industry and congregate living setting) for managing a COVID-19 outbreak. If an employer discovers a worker who has tested positive for COVID-19 or a worker who has symptoms, it should make sure the worker does not remain at work, and work with the local health department to follow guidance about isolation or quarantine, possible testing, and when it is appropriate for the worker to return to work. The guidance encourages employers to offer flexible leave policies that support the need for workers to be off work for the protection of others.
The Employer Playbook lists several actions employers must take to prepare for identification of COVID-19 outbreaks in their workplace. Below is a streamlined version of these actions:
Outbreak Identification Preparedness Actions
|Designate a workplace infection prevention coordinator to implement COVID-19 infection prevention procedures and to manage COVID-related issues among workers.|
|Ensure that sick leave policies are sufficiently generous and flexible to enable workers who are sick to stay home without penalty and ensure that workers are aware of such policies. As applicable, employers should also make their workers aware of the following leave entitlements: (1) paid leave benefits under the federal Families First Coronavirus Response Act for private employers with fewer than 500 workers; (2) paid sick leave benefits for employers with 500 or more workers in the food sector under Executive Order N-51-20; and (3) up to 12 weeks of job-protected leave under the California Family Rights Act.|
|Instruct workers to stay home and report to the employer if they are having symptoms of COVID-19, were diagnosed with COVID-19, or are awaiting test results for COVID-19.|
|Develop mechanisms for tracking suspected and confirmed cases among workers in coordination with your local health department.|
|Identify contact information for the local health department in the jurisdiction where the workplace is located and notify the local health department if there is a known or suspected outbreak in the workplace.|
The Playbook also provides considerations for employers to communicate identified cases of COVID-19 to local health departments and to workers.
In addition, it lists several actions that employers can take to prevent further spread of COVID-19 in the workplace:
- Employers should seek guidance from the local health department to develop a testing strategy to determine who needs to be tested.
- If testing is limited, or not recommended, your local health department may recommend alternative methods for controlling the outbreak, including but not limited to tracing all close contacts of confirmed cases and instructing those individuals to quarantine or temporarily closing the workplace and quarantining all workers.
- Employers should provide information to the local health department on the confirmed COVID-19 case workers in the workplace, including job titles, work areas, close contacts in the workplace, dates of symptom onset, and shifts worked while infectious.
- Establish if the employer, local health department, or both will conduct interviews of the cases to determine their close contacts.
- In consultation with the local health department, interview workers with laboratory confirmed COVID-19 by phone to determine when their symptoms began, the shifts they worked during their infectious period, and to identify other workers with whom they had close contact during their infectious period.
- A “close contact” is someone who spent 15 minutes or more within 6 feet of an individual with COVID-19 infection during the individual’s infectious period, which includes, at a minimum, the 48 hours before the individual developed symptoms.
- Close contacts should be instructed to quarantine at home for 14 days from their last known contact with the worker with COVID-19 and should be tested for COVID-19.
- Use employment records to verify shifts worked during the infectious period and other workers who may have worked closely with them during that time period.
- While at home, close contacts should self-monitor daily for COVID-19 symptoms (e.g., fever, chills, shaking chills, cough, difficulty breathing, sore throat, congestion or runny nose, fatigue, body or muscle aches, loss of taste or smell, nausea or vomiting, diarrhea, loss of appetite).
These actions are generally consistent with recommendations from the Centers for Disease Control and Prevention (CDC). However, as the CDPH notes, employers must review and follow guidance from local health departments, which could vary from state and federal guidance.
Return to Work
The Employer Playbook provides a chart with information from the CDC regarding when workers may return to work. Below is a simplified version of the chart, which was last updated by the CDPH on July 24, 2020.
|Workers||Minimum Criteria for Return to Work|
Workers with symptoms who are laboratory confirmed to have COVID-19
|At least 1 day (24 hours) has passed since last fever, defined as resolution of fever without the use of fever-reducing medications and improvement in symptoms (e.g., cough, shortness of breath); and, at least 10 days have passed since symptoms first appeared.|
Workers who never had symptoms and are laboratory confirmed to have COVID-19
|A minimum of 10 days has passed since the date of their first positive COVID-19 test. If they develop symptoms, then the criteria for laboratory confirmed cases with symptoms apply.|
|Symptomatic Negative||Use the same criteria for return to work as laboratory confirmed cases.|
Workers who never had symptoms but were tested due to close contact with a laboratory-confirmed case patient and were negative
|Workers should quarantine at home for 14 days after the last known close contact with the case patient. Symptoms can develop even after testing negative within 14 days after exposure. Local health departments may allow an earlier return to work for a worker in a critical infrastructure industry.|
Workers who had symptoms of COVID-19 but were not tested
|Testing is highly recommended. If the worker cannot be tested, use the same criteria for return to work as laboratory confirmed cases.|
Workers who had close contact to a laboratory-confirmed case patient at work, home, or in the community and do not have symptoms.
Workers who refuse or are unable to be tested after close contact with a laboratory-confirmed case, despite recommendation for testing from local health department or healthcare provider, and do not have symptoms.
Workers should be quarantined at home for 14 days after the last known close contact with the case patient. Testing is highly recommended. If testing has not occurred, the local health department may consider allowing such a worker to work in a critical infrastructure industry under certain conditions.
Workers who develop symptoms of COVID-19 while in quarantine should contact their healthcare provider. Even if they are not tested, the same criteria for return to work should be used as laboratory-confirmed cases.
It is important to note that the CDPH qualifies this chart by noting that employers should consult with their local health department and the most recent CDC guidance on the issue. This is particularly important. It must be noted that the CDC has revised its standards for when an individual may discontinue isolation multiple times during the pandemic.
Regulations and Guidance for COVID-19 Reporting and Disclosures
The CDPH’s Employer Playbook provides information for employers regarding when COVID-19 cases must be recorded and reported to Cal/OSHA. As described by the CDPH, a COVID-19 illness may meet the definition of a serious illness that would need to be reported immediately.
The Playbook emphasizes that when employers identify a worker who has tested positive for COVID-19 or a worker who has symptoms, they should make sure the worker does not remain at work. It also provides general guidance regarding what information to provide regarding employees who test positive for COVID-19. Much of the guidance mirrors CDC and local health department guidance. Significantly, employers must not identify the name of an infected employee in the workplace to ensure compliance with privacy laws. The CDPH provides a draft communication that employers can consider sending to their employees:
[Employer] has learned that a worker at [office location] tested positive for COVID-19. The worker received tested results on [date]. This email is to notify you that you may have been exposed to the novel virus. You should contact your local public health department for guidance and any potential actions to take based on individual circumstances or if you develop COVID-19 symptoms.
Because this language is provided directly from the CDPH, employers in California may prefer to use such language, or substantially similar language, for future communications to their employees.
Protected Leaves, Unemployment Benefits, and Workers’ Compensation
The Employer Playbook highlights that employees may be entitled to benefits related to COVID-19 under the California Family Rights Act (CFRA), paid sick leave, California COVID-19 Supplemental Paid Sick Leave under Executive Order N-51-20, the Families First Coronavirus Response Act (FFCRA), and local paid sick leave laws. It also highlights the potential applicability of regular and pandemic unemployment benefits and workers’ compensation benefits for employees who are impacted by COVID-19.
The CDPH’s COVID-19 Employer Playbook For a Safe Reopening is a good resource for employers to gain a high-level understanding of some of the issues that employers in California must deal with during the COVID-19 pandemic. For those who have closely followed developments in the field, there is little new information in the Playbook. However, it does pull together information from multiple different sources, combines information in a single resource, and provides many helpful links.
A more in-depth analysis of the different legal issues employers face with the COVID-19 pandemic is available in Castle Publications’ Employer’s Guide To COVID-19 And Emerging Workplace Issues. The publication is available electronically and is periodically updated to account for new laws, ordinances, orders, and other developments.
As you are aware, things are changing quickly and there is a lack of clear-cut authority or bright line rules on implementation. This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where things currently and generally stand. This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.
Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace. Stay informed on legal implications with Sheppard Mullin’s Coronavirus Insights Portal which aggregates the firm’s various COVID-19 blog posts.