After weathering the effects of the COVID-19 pandemic in March and April, many businesses are now planning the gradual process of reopening and reintegrating employees back to workplaces. This requires employers to reimagine what “new” workplaces will look like, what changes should occur, and how businesses will be restructured to accommodate physical distancing and new legal standards that will regulate how and where employees work.

The COVID-19 pandemic has not just reenergized thinking about telework practices. It has changed perceptions of how employees will commute to work and raised concerns regarding travel practices and long trips using public transportation. It has also altered views regarding the safe use of escalators, elevators, parking facilities, time clocks, restrooms and common work areas. Apart from the physical locations where work is performed, businesses can anticipate modifications to visitor and customer practices and work schedules, such as staggered arrival times, rotating shifts, alternative workweek arrangements and much more. It is difficult to believe this can occur without altering productivity standards.

1. Reviewing And Updating Policies

When addressing issues associated with reopening businesses and returning employees to work, employers should add another important item to their “to do” list. They must remember the importance of reviewing their existing policies and handbooks and adding new policies when warranted by changes to their practices or legal developments. Several bills signed into law in 2019 that took effect this year necessitate revisions to many employers’ personnel policies. The COVID-19 pandemic and the ongoing stream of Executive Orders, government mandates, and agency interpretations add a new layer of complexity to the challenges presented by policy and handbook updates. This will require the review and revision of some existing policies and the creation of new policies that respond to the pandemic.

This article examines some of the policies and issues employers should consider in the days and weeks ahead.

2. Policies Impacted By Recent Legislation

Many employers were interrupted in March and April from updating their policies to respond to new legislation that took effect on January 1, 2020. Several California bills require employers to revise their policies. These include the need for new lactation accommodation policies under SB 142 (which amended Labor Code Sections 1030 - 34), revised organ and bone marrow donor leave policies under AB 1223 (which amended Labor Code Section 1510), paid family leave (“PFL”) policies under SB 83 (which will increase PFL benefits from six to eight weeks on July 1), and dress and grooming policies, which must be modified under SB 188, a bill that prohibits discrimination under Government Code section 12926(w) based on “protective hairstyles,” such as braids, locks and twists. (A detailed review of the workplace reforms is provided in the November 2019 ALERT.)

3. The COVID-19 Pandemic

On April 16, 2020, the Trump Administration announced a three-phase approach to reopening businesses that accords substantial deference to decisions of individual states. California, in turn, adopted a four-stage approach that relies on science and data to prepare for and reopen businesses. As this phased-in process of gradually reintegrating employees to workplaces across the state occurs, employment law practitioners advising businesses and employers should address the pervasive effect of the pandemic on employer policies and practices. This should anticipate that further layoffs are likely for many businesses that face financial perils.

a. Governor Newsom’s New Executive Orders

The need to reevaluate existing policies and consider the adoption of new ones is exhibited by numerous facts and developments. For example, Governor Newsom’s stay-at-home, state emergency, and WARN Act directives contain numerous statements that should influence how employers conduct business and structure their workplaces.

As an illustration, Executive Order N-62-20 (May 6, 2020) stimulates thinking about policies. On its face, the Executive Order states that any COVID-19 illness of an employee is presumed to arise out of and in the course of employment for purposes of awarding workers’ compensation benefits if specified conditions are met. In support of this new and extremely significant presumption, the Order states that “employees who report to their places of employment are often exposed to an increased risk of contracting COVID-19, which may require medical treatment, including hospitalization.” Remarkably, no distinctions are made based on an employee’s work setting, work environment, industry, position, or job duties. The order also states that “employees who report to work while sick increase health and safety risks for themselves, their fellow employees, and others with whom they come into contact.”

b. Addressing Health And Safety Issues

Read in tandem with the CDC’s, EEOC’s and DFEH’s guidance, employers can and arguably should disclose such risks to employees who reenter the workplace. Many employers will also desire to address health and safety issues, impose self-reporting obligations and screen employees before they return in a manner that adheres to CDC and other agency guidance. The EEOC and DFEH, for instance, allow temperature checks and sending employees home is they are sick when they report for work or become sick at work. The objective is to stop the spread.

Practitioners should give special attention to safety policies, such as policies that express a commitment to the health and safety of employees, customers and communities. Policies can require cooperation by employees, including social distancing, handwashing, and proper hygiene. Employers who choose to engage in temperature checks, testing, and inquiries regarding employee absences should articulate their rules and protocols in new policies. Some may choose to ask employees to acknowledge such policies and some may go further and ask employees to self-report COVID-19 symptoms, e.g., fever, coughing and shortness of breath, or attest each day that they have no symptoms.

Consistent with the premises stated in Executive Order N-62-20, employers may wish to advise employees of the risks of contracting COVID-19 in any workplace, their infection control policies, and policies designed to prevent crowding and require physical distancing at time clocks, entrances, elevators, escalators, parking facilities, locker areas, employee lounges and cafeterias.

c. Wage And Hour Policies

Employers face ongoing wage-hour issues in dealing with the consequences of the pandemic. The ever-present fear of wage-hour lawsuits, including the overwhelming concern about the penalty structure created by the Private Attorneys General Act (“PAGA”), will certainly be a deterrent to some experiments that are designed to make workplaces safer and more employee-friendly. Yet, employers will likely wish to reserve the right to modify and stagger work schedules to help achieve their safety objectives.

Employers that allow or assign employees to telework from home have a variety of other policies to consider. It is important that employers reimburse employees for business expenses that they necessarily incur based on Labor Code section 2802. They must also direct hourly employees to accurately record all work time and take meal and rest periods. Their policies should address the use of vacation, PTO and paid sick leave in full or partial day increments. Many employers may wish to reserve the right to require the use of vacation and PTO.

Certainly, any new or revised policies should comport with the guidance issued by the CDC and state and local public health authorities. It should also reflect the standards announced by state and federal enforcement agencies, including the EEOC, the DFEH, U.S. Department of Labor, Federal and Cal-OSHA, and the Department of Industrial Relations, Labor Commissioner and the Labor and Workforce Development Agency.

Detailed information on these topics is set out in the 15 substantive chapters of the Employer’s Guide To COVID-19 And Emerging Workplace Issues, by Richard J. Simmons, Brian Murphy, Adam Rosenthal, and attorneys at Sheppard Mullin.

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