The newly released state guidance for bringing employees back to work will help establish predictability on what’s expected, but businesses will need go a step further to ensure operations continue without disruption, a policy director said.
California’s “COVID-19 Employer Playbook for a Safe Reopening” covers how to safely reopen, procedures for handling COVID-19 cases, and includes sections on enforcement, compliance, and employee education.
“This is an effort by the state to try and have the economy and businesses stay open once they are able to reopen,” Kevin Klowden, executive director of the Milken Institute’s California Center, told the Northern California Record. “It’s intended to create stability in a circumstance where a lot of people are naturally and reasonably very concerned about it, and want to make sure when reopening happens, it happens in a way that is good for everybody involved.”
Employers still are responsible for following county and city guidelines. Some are more restrictive than others; in San Francisco, a news release states a coalition of hotel associations has taken legal action against the city’s newly introduced ordinance on cleaning and disease prevention.
The playbook already has been updated since its initial release. “As of July 28, 2020, employers are required to report outbreaks to the LHD [local health department] in the jurisdiction where the workplace is located and the LHDs of residence of employees with COVID-19,” the playbook states.
Due diligence and checking regularly for new information is paramount, according to Klowden.
“You don’t want to have to close down again because of infections or disruptions,” he said.
The playbook includes industry specifics in 28 areas, information on state and federal sick leave, and employee responsibilities to protect themselves at work – and at home.
“Ultimately right now, the California case count is too high to do everything in this playbook, but the plan is to get there,” Klowden said.
After reopening, a key goal is not having to shut down again due to lawsuits or regulation violations.
“California is absolutely viewed as a higher regulation state,” Klowden said. “If you’re following what’s included here, then you’re generally going to be in good shape. They’re trying to give businesses the tools to reopen, and saying if you follow these, you’re in much better shape than you would be otherwise.”
No one wants to see a cycle of openings and closures and business bankruptcies, Klowden said. “They’re trying to create a sense of certainty so that companies can function and stay functioning.”
At the same time, a host of liability considerations are still in place. The Governor’s Office of Emergency Services has set up the COVID-19 Enforcement Task Force to monitor violations of state statutes and orders.
And the July 28 update includes state Department of Industrial Relations (DIR) information about California labor laws as they pertain to COVID-19, including liability waivers. Employers cannot require workers to sign a disclaimer as a condition of going back to work; doing so could result in liability against the employer, per Labor Code section 432.6(a).
“Even if the federal liability reforms that [U.S. Sen.] Mitch McConnell [R-KY] has been pushing for are put through, there’s an important distinction,” Klowden said. “That might provide a certain amount of broader lawsuit protection, but there is very clear precedent with state law applying in a variety of these circumstances. States can still levy very significant fines and go after companies that are violating state regulations.”
Under CAL/OSHA requirements, cases resulting in death or hospitalization must be reported within eight hours of when the employer knew or should have known, the playbook states.
“Every major economy in the world has been dealing with this threat, and if there are more [COVID-19 case] surges, as part of the adaptation, you want to create a mechanism so companies can stay open,” Klowden said. “Having a structure in place that minimizes the possibility of having to reclose if things happen within the companies is an important, positive step.”