Summer Day Camp Closures: Employee Must be Given Paid Leave!

July 13, 2020

As employers know, Congress recently enacted the Families First Coronavirus Response Act (FFCRA), which requires most public employers and private sector employers with less than 500 employees to provide paid leave to employees who cannot work due to COVID-19 reasons, including the fact that their child’s school is closed because of COVID-19.  Prior to summer, this paid leave entitlement was fairly easy to understand and apply.  However, now that summer is upon us and schools are closed for summer (not just because of COVID-19), employers are confused as to whether they still have to provide paid FFCRA leave to employees who cannot work because their summer day care plans have been canceled due to COVID-19.  The federal Department of Labor (DOL) issued a field assistance bulletin providing guidance to employers on this specific issue.  The DOL also issued a second bulletin providing guidance on the effect of school closures on child labor limitations under the Fair Labor Standards Act (FLSA).  The FLSA places limits on the hours minors may work.  Those limits vary depending on whether or not school is in session.  The widespread school closures triggered by COVID-19 have led to confusion over what it means for school to be “in session.”  Is a school “in session” if it is physically closed but nonetheless continuing virtual instruction?  Today’s DOL bulletins answer this question as well.

School Closures During Summer and Eligibility for Paid FFCRA Leave

The FFCRA provides employees with paid leave if they cannot work because they need to care for a child whose school is closed due to COVID-19.  It is summer now and most schools are closed, not because of COVID-19 but because they regularly are closed in the summer months.  Nonetheless, many parents who rely on summer camps or similar programs to provide day care for their children during summer are still unable to work because many of those programs have been cancelled due to COVID-19 restrictions.  Employers are reminded that the FFCRA’s paid leave provisions apply to employees who cannot work because they need to care for a child whose school or place of care is closed due to COVID-19.  Thus, even though schools are currently closed due to summer vacation (not COVID-19), employees still may be eligible to paid FFCRA leave if their summer day care plans for their child have fallen through due to COVID-19.  This raises questions concerning how an employee can establish that their child’s summer day care plan fell through due to COVID-19, and whether there is any way for employers to guard against possible abuse by employees who just want time off during the summer off with pay.  The answers aren’t great.  The short answer is that an employee can establish eligibility for “place of care closure leave” through many means.  This may include proof of enrollment in a summer camp or day care, along with proof of cancellation, but this level of proof is not absolutely necessary.  Given that COVID-related closures started in March, enrollment for various camps and related activities may not have even been completed prior to summer starting, so an employee legitimately may not have proof of enrollment. In such circumstances, the DOL suggests that it may be enough for an employee to indicate intention to enroll a child in summer care, which an employee may (but is not required to) substantiate with proof of enrollment in the same programs in prior summers.  In simplest terms, just about anything an employee provides in terms of substantiating that their summer day care plans fell through likely will suffice.

FLSA Child Labor Limitations and Meaning of School Being “In Session”

As noted above, the FLSA places restrictions on the number of hours certain minors (especially 14 and 15-year olds) may work.  Those hours caps vary depending on whether school is in session.  The COVID pandemic has led to a new type of “virtual” distance learning that many schools have implemented in lieu of complete cessation of instruction.  However, most schools have been physically closed since March.  In the world of virtual learning, what does it mean for a school to be “in session?”  The DOL’s bulletin provides guidance on this issue, generally explaining that school is “in session” in any week in which the school requires a child to attend school, either physically or through virtual or distance learning.

Employers covered by the FFCRA, and those that employ minors, should review the DOL bulletins to ensure they are in compliance.


What to Do if an Employee Tests Positive!

July 6, 2020

Due to most workplaces reopening, we have been getting more and more questions from employers about what to do if they have an employee who reports that they have tested positive for COVID-19.  Cal-OSHA likely has been getting similar inquiries and, as a result, recently issued guidance for employers on the specific topic of handling outbreaks in the workplace.  Their guidance is on their website: (  Keep in mind, Cal-OSHA cautions that even a single positive case may quickly turn into an outbreak among employees.  Furthermore, because workplace circumstances and settings vary greatly, Cal-OSHA recommends that employers contact and consult with their local health department to plan and coordinate a response.

In addition to working with the local health department on specific responses protocols,  employers also must keep in mind Cal-OSHA reporting requirements.  Employers must report serious injuries, illnesses or deaths in the workplace immediately.  Cal-OSHA instructs that for COVID-19 purposes, this means COVID-19 related inpatient hospitalizations or deaths, and employers should report these events even if work-relatedness is uncertain.

Employers must also keep in mind Governor Newsom’s May 6, 2020 Executive Order providing, for workers’ compensation coverage purposes, that any case of COVID-19 contracted between March 19, 2020 and July 5, 2020 by an employee who works outside the home, is presumed to have occurred in the course of employment.  This presumption is rebuttable (e.g. the employee lives with a non-employee who had COVID-19), but the employer does not get to decide whether or not the virus was contracted at work.  The employer should give the employee a work comp form and let the carrier determine coverage.

Although the employer should confer with the local health department on specific protocols for handling a workplace outbreak involving one or more employees, some things that employers will need to consider are the following:

  • Informing coworkers who may have come into contact with the infected employee that an employee (maintain confidentiality of the employee’s identity to the extent practicable) has tested positive;
  • Consider providing COVID-19 testing for other employees.  Remember that if testing is required by the employer, the expense must be paid for by the employer, and the employees must be paid for the time they spend undergoing testing.  Also remember that employees cannot be required to undergo COVID-19 antibody testing, but only testing for active infection.
  • Where testing is not feasible, try to utilize contact tracing to identify those who have had close contact with the infected employee, and advise those close contacts to quarantine at home for 14 days from their last known contact with the infected employee.  If the outbreak involves numerous employees with close contacts with the infected employee, consider closing the worksite temporarily and advising all employees to quarantine.  “Close contact” means spending 15 minutes or more within 6 feet of a COVID-19 positive employee during their infectious period, which includes 48 hours before they became symptomatic.
  • While at home, quarantined employees should monitor for any potential symptoms of COVID-19 (fever, shortness of breath, cough, loss of taste/smell, congestion/runny nose, sore throat, fatigue, chills, nausea/vomiting, diarrhea) and should be encouraged to get a COVID-19 test if they develop symptoms.
  • The work area used by the infected employee(s) must be cleaned and disinfected (and such cleaning and disinfecting of the workplace should be done regularly).
  • Employees who are still reporting to work should not share equipment (particularly equipment that comes into contact with the face or mouth, such as telephones and headsets), and employees must be reminded to follow safety protocols established by the CDF and local guidance (including wearing face coverings and social distancing).  Of course, all employees should be reminded not to report to work with symptoms.

Employers must also follow current guidance on when it is safe to allow an employee who has tested positive for COVID-19 to return to work.  The answer varies depending on whether the employee has symptoms or is asymptomatic.  The answer also varies depending on whether COVID-19 testing is available and utilized.  According to the CDC, if an employee tests positive and has symptoms, the employee may return to the workplace either:  (1) 72 hours after the employee is fever-free (without the use of fever-reducing medicine), AND respiratory symptoms (cough, shortness of breath) have improved, AND at least 10 days have passed since symptoms first appeared; OR (2) after the employee has tested negative for COVID-19 two consecutive times, at least 24 hours apart, and employee is fever-free (without use of fever reducing medicine) and any respiratory symptoms have improved.

If an employee tests positive but is asymptomatic, the employee may return to the workplace (1) after at least 10 days have passed since they tested positive if they still have not developed any symptoms; or (2) after the employee has two consecutive negative COVID-19 tests, at least 24 hours apart.  Cal-OSHA advises that employers defer to their local health department on specific return to work criteria that they should follow.

Of course, any time an employee cannot work due to COVID-19 (testing positive, being ill with symptoms, or being quarantined due to close contact with an infected individual), the employer needs to be sure the employee is informed of paid time off rights and provided with applicable paid time off.  This may include paid sick leave under the federal Families First Coronavirus Response Act (FFCRA) and/or state and local paid sick leave laws.  The cities of San Francisco, Oakland, San Jose, Los Angeles, and Long Beach all have COVID-19 sick leave ordinances that supplement pre-existing paid sick leave and/or apply to employers who are not covered by the FFCRA.  By way of reminder, the FFCRA provides up to 80 hours of paid sick leave to employees who work for private sector employers with less than 500 employees (or who work for a public employer).

If you are an employer with 50 or more employees and you have an employee who becomes seriously ill with COVID-19 (e.g. the employee is hospitalized), keep in mind that this could also trigger a lengthier entitlement to up to twelve weeks of unpaid leave under the FMLA/CFRA.


Face Masks Requirements for Employers

June 29, 2020

Governor Newsom has signed a new Executive Order broadly requiring people to wear a face covering when outside the home.  Here are the rules most applicable to employers:

Face masks are required while working when:

  • Interacting in-person with the public;
  • Working in any space visited by the public, regardless of whether anyone is present;
  • Working in any space where food is prepared or packaged for sale or distribution;
  • Working in or walking through common areas, such as hallways, stairwells, elevators, and parking facilities;
  • In any room or enclosed area where other people are present when unable to physically distance (i.e. six feet or separation or impervious barriers between employees required); and
  • Driving or operating any public transportation, taxi, or private car service when passengers are present.

Masks are required while outdoors when maintaining a physical distance of six feet from persons who are not members of the same household is not feasible, and inside of, or in line to enter, any indoor public space.

For all of our struggling restaurant clients and friends: as noted below, you do not need to close back down, and masks are not required for customers while dining in a restaurant if six feet of separation is maintained from other groups (or proper impervious barriers have been installed).  Customers must wear masks upon entering, and staff must wear masks at all times while working (but not gloves unless they are clearing the table or involved in cleaning/disinfecting).

The following individuals are exempt from wearing a face covering:

  • Children aged two and under;
  • Persons with a medical, mental health, or developmental disability that prevents wearing a face covering;
  • Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication;
  • Persons for whom wearing a face covering would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines;
  • Persons who are obtaining a service involving the nose or face for which temporary removal of the face covering is necessary to perform the service;
  • Persons who are seated at a restaurant or other establishment that offers food or beverage service, while they are eating or drinking, provided that they are able to maintain a distance of at least six feet away from persons who are not members of the same household or residence;
  • Persons who are engaged in outdoor work or recreation such as swimming, walking, hiking, bicycling, or running, when alone or with household members, and when they are able to maintain a distance of at least six feet from others; and
  • Persons who are incarcerated. Prisons and jails, as part of their mitigation plans, will have specific guidance on the wearing of face coverings of masks for both inmates and staff.

The Governor’s Order essentially negates any existing county or local orders that said masks were not required, or that otherwise conflict with the state Order.

Employers need to provide masks or reimburse the cost if employees are required to wear them at work (which almost everyone will to some extent – at least while entering and walking through common areas and using the bathroom).

Hopefully, this new Order will not impose too much of a burden on employers who likely just re-opened, as many have already taken steps to make sure employees are six feet apart (or erected barriers), which allows them to work without masks at their workstation (but they will have to wear them in the bathroom, breakroom or walking in common areas).


U.S. Supreme Issues Key Decision on LGBTQ Employment Rights!

June 22, 2020

The United States Supreme Court issued its opinion (authored by Trump appointee Neil Gorsuch) holding that Title VII’s protections against sex discrimination in the workplace apply to LGBTQ employees.  This was a good decision that resolves a split of authority among lower courts and now confirms that under federal law, Title VII prohibits employers from discriminating against employees on the basis of sexual orientation and gender identity.  This has long been the law in California, so this should not be a game-changer for California employers in terms of their anti-discrimination policies and practices.  Any multi-state employers who do not already have policies in place prohibiting discrimination and harassment on the basis of sexual orientation and gender identity will want to revise their policies to be in compliance with today’s ruling.

The Supreme Court decision was issued in three different cases that were consolidated for purposes of review.  In the first case, Bostock v. Clayton County, the plaintiff, a long-term employee, was fired by his County employer for conduct “unbecoming” of a County employee after he joined a recreational gay softball league and certain influential members of the community expressed criticism of him.  In the second case,  Zarda v. Altitude Express, the plaintiff worked several seasons for the employer as a skydiving instructor until he was fired shortly after disclosing that he was gay.  In the third case, Stephens v. R.G. & G.R. Funeral Homes, the plaintiff worked for the employer for six years as a male but then disclosed to the employer that he intended to transition and to live and work as a female.  The employee was fired shortly thereafter.

In Bostock, the Eleventh Circuit Court of Appeals held that Title VII does not bar sexual orientation discrimination and, thus, dismissed the employee’s claim.  The Second Circuit in Zarda and the Sixth Circuit in Stephens disagreed, allowing the discrimination claims of those employees to proceed under Title VII.  These split rulings on the same issue set the stage for Supreme Court review and today’s ruling resolving that split and pronouncing that Title VII indeed prohibits discrimination against an employee on the basis of sexual orientation and transgender status.  This was not a “political” decision in my opinion. It was the right decision and one I have been touting in my seminars for years.

Be safe!

Terminating an Employee for not Wearing a “Trump 2020″ Mask!” Dumb!

June 15, 2020

As much as we try to get employers to use common sense, here is a ridiculous reason for terminating an employee. Ohio requires that all employees wear face masks or other face coverings as a condition to any business reopening. The only rules are that the mask cover the employee’s nose, mouth, and chin. There are no other requirements about the nature of the mask or face covering, including its design or style.

One southern Ohio business, The Village Inn restaurant in Farmersville, is testing the mask-requirement waters by requiring its employees to wear “Trump 2020″ masks.

It appears that a former waitress claimed that she was fired after the owner approached her on more than one occasion and stated she needed to wear the company “Trump 2020 mask” because masks were required to be worn on the job. According to the former waitress, she responded by telling the owner she would wear the mask but would wear it “inside out.”

The owner allegedly told her “No, you will wear it with Trump 2020 facing out for people to see” and she responded that she would not do it and was told to leave.

Just to be clear, Ohio is an “at-will” state and there are only a few states that ban political opinion discrimination, and Ohio isn’t one of them. So while many will feel that her termination is morally and ethically reprehensible, it may not have been unlawful.  If this had happened in California, plaintiff attorneys would be flinging their business cards in her direction!

As a reminder even at at-will state recognizes several key exceptions to employment-at-will, including a tort claim for wrongful discharge in violation of public policy. What does this mean?

In order for a plaintiff to succeed on a wrongful-termination-in-violation-of-public-policy claim, a plaintiff must establish four elements: (1) that a clear public policy existed and was manifested either in a state or federal constitution, statute or administrative regulation or in the common law (“the clarity element”), (2) that dismissing employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize the public policy (“the jeopardy element”), (3) the plaintiff’s dismissal was motivated by conduct related to the public policy (“the causation element”), and (4) the employer lacked an overriding legitimate business justification for the dismissal (“the overriding-justification element”).

In other words, if a termination offends a clear public policy of the state, and the employee does not have any other remedy to redress the termination, the employee can sue in tort for the wrongful discharge.

Some states have a clear public policy against employers influencing employees’ political opinions. Employers, in my opinion, should never make expressed or implied threats intended to influence the political opinions or votes of his or its employees. We are in the midst of political upheaval with a Presidential election a few months away. Stay away from influencing, commenting, or suggesting to any employee who the next President should be.



School is Out! Does the FFCRA Still Apply?

June 8, 2020

Now that most schools are finished for the summer there are questions (and excuses) regarding employees wanting to continue to stay home. As a reminder, As employers covered by the Families First Coronavirus Response Act (“FFCRA”) know, the Act entitles employees of private employers with less than 500 employees who cannot work (or telework) for Covid-related reasons to take paid sick leave.  The Act also provides expanded and paid family leave for employees to use if they have a child whose school has closed due to Covid-19.  The closures lasted longer than many of us thought they would and now school is out for the year for many and will be out soon for others.  Employers now may be wondering whether they still have to provide paid family leave under the FFCRA to employees to stay home and care for their children while school is out for the summer.  This may seem like an obvious “no,” but the answer is not that simple.  The Department of Labor (“DOL”) recently updated its FFCRA guidance to address this very issue in response to a number of employer inquiries.  Here’s the DOL’s FAQ guidance on this issue:

  1. I took paid sick leave and am now taking expanded family and medical leave to care for my children whose school is closed for a COVID-19 related reason. After completing distance learning, the children’s school closed for summer vacation. May I take paid sick leave or expanded family and medical leave to care for my children because their school is closed for summer vacation?
  2. No. Paid sick leave and emergency family and medical leave are not available for this qualifying reason if the school or child care provider is closed for summer vacation, or any other reason that is not related to COVID-19.  However, the employee may be able to take leave if his or her child’s care provider during the summer—a camp or other programs in which the employee’s child is enrolled—is closed or unavailable for a COVID-19 related reason.

This means that even though paid sick leave and paid family leave under the FFCRA generally are not available to an employee whose child’s school is closed for its normally scheduled summer vacation, if an employee’s other summer child care plans are unavailable because of Covid-19 related closures—which is certainly possible because many camps and activities have been cancelled—the employee still may be eligible for paid FFCRA leave if the employee is unable to work or telework due to the need to care for a child whose summer activities have been cancelled.  If you’re wondering how much proof you can require from an employee to substantiate their need for paid FFCRA leave for this reason, there is not a ton that you can require.  According to the DOL, the employee must provide, either orally or in writing, (1) his or her name; (2) the dates for which leave is requested; (3) the covered reason for the leave (i.e. Covid-related school/child care closure); (4) a statement that the employee is unable to work for this reason; (5) the name of the child; (6) the name of the school, place of care, or child care provider that has closed or become unavailable; and (7) a statement that no other suitable person is available to care for the child.

But wait . . . there’s more!  What if you have an employee who has been successfully teleworking for the past two months (while their child’s school was closed) and now suddenly claims the need to take paid FFCRA sick leave and/or expanded family leave in order to care for a child whose school/summer child care is closed due to Covid-19?  Is this legitimate?  According to the DOL, it may be.  Here’s the DOL’s guidance on this issue:

  1.  My employees have been teleworking productively since mid-March without any issues. Now, several employees claim they need to take paid sick leave and expanded family and medical leave to care for their children, whose school is closed because of COVID-19, even though these employees have been teleworking with their children at home for four weeks. Can I ask my employees why they are now unable to work or if they have pursued alternative child care arrangements?
  2. You may require that the employee provide the qualifying reason he or she is taking leave, and submit an oral or written statement that the employee is unable to work because of this reason, and provide other documentation outlined in section 826.100 of the Department’s rule applying the FFCRA [this is the documentation I listed above]. While you may ask the employee to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work, you should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act. The fact that your employee has been teleworking despite having his or her children at home does not mean that the employee cannot now take leave to care for his or her children whose schools are closed for a COVID-19 related reason. For example, your employee may not have been able to care effectively for the children while teleworking or, perhaps, your employee may have made the decision to take paid sick leave or expanded family and medical leave to care for the children so that the employee’s spouse, who is not eligible for any type of paid leave, could work or telework. These (and other) reasons are legitimate and do not afford a basis for denying paid sick leave or expanded family and medical leave to care for a child whose school is closed for a COVID-19 related reason. This does not prohibit you from disciplining an employee who unlawfully takes paid sick leave or expanded family and medical leave based on misrepresentations, including, for example, to care for the employee’s children when the employee, in fact, has no children and is not taking care of a child.

The DOL’s entire FAQ on the FFCRA can be found at:

These are difficult times with difficult decisions. Please use common sense as well. We have no idea where the litigation might enter into the picture.

Be safe!


Employers Must Communicate Return to Work Guidelines!

June 1, 2020

As employees return to work, California employers will face a wide range of COVID-19 related workplace issues born out of their efforts to keep employees safe and healthy.  Just as with all other workplace safety rules, employers should clearly communicate COVID-19 workplace safety rules and procedures to their workforce.  Employers should also clearly communicate the expectation that all employees comply and the consequences for failing to do so.  When implementing new policies, employers should remind employees that the purpose of the new policies is to protect everyone in the workplace and that employees will be updated when/if policies change.  Undoubtedly there will be some employees who either refuse to comply outright or are inconsistent in their compliance efforts.

Generally, employment can be terminated for refusing to comply with an employer’s policies.  That said, the question during these unprecedented times is “Should employment be terminated if an employee refuses to comply with COVID-19 workplace safety rules?”  The answer must be navigated on a case-by-case basis.

As a threshold consideration, employers should always be even-handed in how they enforce company policies.  Any new rules should be enforced in the same manner as all other workplace safety rules.  In other words, if an employer pre-COVID-19 did not terminate employment for a first offense, then it should not necessarily change that practice now.  Evidence that an employer deviated from how it typically enforces its own policies is commonly relied upon by plaintiffs’ practitioners to support employment-related claims like wrongful termination, retaliation, and discrimination.  Given the increase in employment-related claims that is anticipated in the wake of the COVID-19 pandemic, employers should maintain consistent enforcement of COVID-19 workplace safety rules and procedures to avoid the appearance that anyone was singled out and suffered employment actions that were motivated by improper bias rather than legitimate business reasons.

Unfortunately, there is not a one size fits all approach to the COVID-19 workplace terrain.  Additionally, the inconsistencies in state and local health orders with respect to COVID-19 general safety rules complicates the burden of enforcing workplace safety rules, which may be more protective than the general local rules or the industry-specific state rules and guidance.  Accordingly, employers should not be quick to terminate employment if an employee refuses to comply.

Moreover, there may be legitimate reasons for an employee’s refusal to comply.  For example, if an employer requires employees to wear face coverings (whether in compliance with a local order or not) and an employee reports that he/she has a disability that prevents the employee from wearing a face covering, the employer may have a duty to reasonably accommodate.  Such an accommodation may be to allow an exception from the face mask requirement.  Importantly, employers may also have a duty to accommodate employees who cannot wear certain protective equipment (e.g. latex gloves) by providing different, and possibly more expensive alternatives.  This added consideration increases the land mines that await California employers as they reopen for business.

Employers should be mindful of EEOC guidelines as well as state and local health orders, when drafting COVID-19 workplace safety rules to ensure consistency.  Some counties require face coverings be worn in all workplaces, while other counties do not at this time. Not surprisingly, state guidance strongly recommends that employees wear face coverings if they cannot maintain social distancing and, of course, maintain physical distancing.  However, the face covering guidance has been notably inconsistent throughout the pendency of the health emergency, and employers should monitor continued changes that may affect workplace safety protocols.

Be safe!






Coronavirus Lawsuit: The Risk Businesses Face!

May 26, 2020

Businesses are going to start thinking about the possibility of lawsuits emerging surrounding the lack of safety precautions for workers. An employee has sued a protein bar company after she contracted COVID-19. She claims that she became ill because her employer ignored her safety-related complaints and did not take sufficient steps after other co-workers first got coronavirus.

What does the employee claim her employer failed to do in the three weeks between the time during which rumors circulated that two of her co-workers tested positive and she tested positive?

  • Operated the business in violation of federal, state, and local orders regarding the operation of businesses during the COVID-19 pandemic.
  • Threatened employees who raised COVID-19 related safety concerns.
  • Refused to provide employees with PPE.
  • Failed to suspend operations to sanitize the facility.
  • Ignored employees’ safety warnings.

For its part, the employer vehemently denies the allegations.

Like many businesses, we are all doing our best to combat the spread of COVID-19 while simultaneously providing safe jobs and incomes to our employees during this difficult time (or at least should have been). Employers have had to sanitize their entire facility and put additional safety measures in place. The allegations of this lawsuit, however, are false according to the employer. The burden shifter to the employer to prove that the employee did not get Corvid-19 at work. How does an employer prove otherwise? It is difficult but if the employer can prove that they did everything they were obligated to do a jury may not be sympathetic to the employee’s cause.

So, let’s assume, for the sake of argument, every allegation in the employee’s complaint is true. I still don’t see how she wins. It’s just way too hard for an employee to establish causation. With community spread by asymptomatic and pre-symptomatic transmission and without adequate contract tracing in place, I have no idea how an employee proves by a preponderance of the evidence that the exposure the sickened the employee happened at work. But filing a lawsuit and winning a lawsuit are two different animals. This employer will still have to deal with the time and expense of defending the lawsuit, and the impact of the negative publicity that comes with it.

This is why businesses must do everything they can to follow state COVID-19 return to work and reopening guidelines to the letter, and communicate to employees everything being done to help ensure their safety. The best defense is usually a good offense, and in this instance, that offense must start long before your employees even set foot at work.

Be safe!

Cal OSHA Update: Corvid-19

May 18, 2020

Cal/OSHA greatly expanded its IIPP guidance pertaining to the hazard of COVID-19 in the workplace.  Employers who have not reviewed and updated their IIPPs to address COVID-19 should do so now.

Prior to the recent change, Cal/OSHA’s only guidance concerning IIPPs in relation to COVID-19 consisted of a general statement/reminder that employers are required to have an IIPP to protect employees from workplace hazards and that employers should determine if COVID-19 is a hazard in their workplace.  If so, employers must implement measures to prevent or reduce infection hazards and provide training on those measures.

Now that Cal/OSHA updated its guidance on COVID-19 and IIPPs.  That guidance now states that, “For most California workplaces, adopting changes to their IIPP is mandatory since COVID-19 is widespread in the community.”

Cal/OSHA replaced their previous general guidance (consisting of two bullet points) with an extensive list of particular “infection prevention measures” and training topics.  Cal/OSHA specifically states to “include [those] infection prevention measures in a written IIPP when applicable to the workplace.”

However, since almost every listed infection prevention measure applies to most workplaces, does that mean that employers are now required physically to write down every measure in their IIPPs?  The most likely answer is “No.”  The required minimum elements of a written IIPP are already governed under Title 8, CCR 3203(a).  Therefore, without formal or emergency rule making (and appropriate notice and comment periods for the public), Cal/OSHA cannot, add additional written requirements to the IIPP standard.

However, just because OSHA may not be able to cite you directly for failing to include all their applicable precautions in your written IIPP, that does not mean they cannot find other ways to find your IIPP ineffective.  In other words, it is assumed that should an employer’s IIPP be under review – for a COVID-related issue or otherwise – Cal/OSHA will use their listed infection prevention measures as a benchmark to gauge the effectiveness of an IIPP as it relates to COVID-19.

Therefore, while employers may not legally be required to list every single applicable Ca/OSHA precaution directly in their written IIPPs, it makes good sense to do so, or at a minimum, to be sure that you are actually implementing these precautions in the workplace.

Employees Entitled to Workers Comp for Corvid-19!

May 11, 2020

Here is the latest from Governor Newsom. He has now issued an Executive Order (EO) mandating that employees who are diagnosed with COVID-19 within 14 days of performing work outside of their homes will be presumed to have contracted the virus in the course and scope of their employment and will be entitled to workers’ compensation benefits as a result.  The presumption applies to diagnosed cases between March 19, 2020 and July 5, 2020.  An employer can try to rebut the presumption and disprove that the virus was contracted in the workplace (good luck with that).  However, if the employer does not succeed in doing so within 30 days of the claim, the injury is presumed to be compensable (unless the employer subsequently discovers new evidence that disproves causation).  The EO applies to all insurance carriers providing workers’ compensation coverage in California, self-insured employers, and any other employer carrying its own risk, including the State of California.  An employee with an accepted work comp claim is eligible for all benefits normally available through workers’ compensation under California law.  The EO does not diminish any employee rights or benefits under federal or state law, including but not limited to paid sick leave benefits, collective bargaining agreement benefits, and group health insurance benefits.  If an employee has paid sick leave benefits specifically available in response to COVID-19, the employee must exhaust those benefits before being eligible for temporary disability benefits.  Finally, the EO specifically states that insurance carriers will not be restricted in their ability to adjust the costs of their policies as a result of compliance with the EO.  In plain English, this translates to “expect work comp premiums to go up in California.”

Employers likely will be displeased at the news of this latest EO.  On the bright side, note that providing work comp coverage for COVID-19 does have one benefit for California employers—it will provide protection from civil lawsuits for negligence and wrongful death by workers and/or their families based on allegations that the employee contracted the virus at work due to unsafe work practices of the employer.  Employers can argue that such claims are barred by the doctrine of workers’ compensation exclusivity (i.e. work comp provides the exclusive remedy for injuries suffered in the course and scope of employment).  Does this benefit outweigh the downside of likely skyrocketing work comp premiums?  Time will tell.