by Katie Culliton, Editor, CalChamber; and
Jessica Mulholland, Managing Editor, CalChamber
Our world is still in a state of flux; California began reopening in May, releasing guidelines that businesses in each industry must follow in order to open their doors. But as workplaces began to reopen, cases of COVID-19 also began to increase — so Governor Gavin Newsom made it mandatory for Californians to wear face coverings when outside their homes.
In response to the surge of COVID-19 cases in some counties, the California Department of Public Health (CDPH) required seven counties to close their bars immediately and recommended eight other counties do the same. Bars were targeted specifically because these environments lead to reduced compliance of personal protective measures, including use of face coverings, and they require raised voices, which leads to greater projection of potentially infected droplets.
On July 1, Newsom further stated that bars in counties on the County Monitoring List for three consecutive days must close all operations, and the following industries in such counties will be required to shut down unless they can be modified to operate outside or by pick-up:
The best bet for businesses in counties where remaining open is still allowed? To follow the face mask requirement, as it will help them to remain open given that wearing face masks reduces the disease’s spread. And that’s not all — there are several other things employers should keep in mind as workplaces in approved counties continue reopening.
The CDPH announced the face mask requirement on June 18, 2020, noting that there are limited exceptions.
“Science shows that face coverings and masks work,” said Governor Gavin Newsom in a press release. “They are critical to keeping those who are around you safe, keeping businesses open and restarting our economy.”
Per the updated guidance, Californians must wear a face covering when they are:
Those exempt from wearing a face covering include children age two and under, as well as people:
Newsom said he took this action due to too many people venturing out with faces uncovered, which puts the progress made in fighting the disease at risk.
“California’s strategy to restart the economy and get people back to work will only be successful if people act safely and follow health recommendations,” he said in the press release. “That means wearing a face covering, washing your hands and practicing physical distancing.”
Social distancing, also known as physical distancing, is key to deterring the spread of COVID-19 in your workplace. It means staying at least six feet (about two arms’ length) from other people outside of your home. As more workplaces reopen, employers will need to train their employees on how to prevent the spread of virus in their workplace, and while social distancing is easy and effective, it also may be difficult for people to make it a habit.
According to the U.S. Centers for Disease Control and Prevention (CDC), COVID-19 mainly spreads when people are in close contact (within six feet) of each other for a prolonged period. An infected person, who may not have any symptoms, projects droplets from their nose and mouth into the air, which lands on people nearby and infects them. Even normal talking causes droplets to spread. Physically distancing yourself from other people limits opportunities for you to encounter infected droplets.
Social distancing is only one of many preventative steps that employees should be taking within the workplace; it’s also one of the least complicated and effective (stay at least six feet away from everyone — no exceptions!). But as employees start resuming their normal workplace routines, they may forget to physically distance themselves from their coworkers. It’s all too easy to slip back into old routines — so consistently remind workers to maintain physical distance for everyone’s health and safety.
Along these lines, the CDC also recommends that workplaces rearrange their layout so employees can be six feet apart and use transparent barriers when physical distancing is not an option. It also gives detailed cleaning and disinfecting guidance. The CDC published a flowchart to assist employers in making re-opening decisions, especially to protect vulnerable workers. The flowchart asks if recommended health and safety actions and ongoing monitoring plans are in place.
In June, the U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance, stating that employers may not require employees to take COVID-19 antibody testing to return to the workplace.
The COVID-19 antibody test (also known as a serology test) screens a person’s blood for antibodies, which the body would have made if it fought the COVID-19 infection. The antibody test doesn’t check for the virus itself — it’s only looking to see if a person’s immune system has responded to the infection.
In a newly added question, the EEOC explains that in light of current Interim Guidelines from the CDC that say antibody test results “should not be used to make decisions about returning to the workplace,” the Americans with Disabilities Act (ADA) doesn’t currently allow employers to require antibody testing before permitting employees to re-enter the workplace.
More specifically, question A.7. in the What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws publication states that under the ADA, an antibody test constitutes a medical examination and, at this time, “does not meet the ADA’s ‘job related and consistent with business necessity’ standard for medical examinations or inquiries for current employees.” For this reason, employers requiring antibody testing before allowing their employees to re-enter the workplace is not allowed under the ADA.
The EEOC also notes that an antibody test differs from a viral test, which determines if someone has an active case of COVID-19, and COVID-19 viral tests are permissible under the ADA.
In a recent episode of The Workplace podcast on creating a return to work plan, CalChamber employment law expert Bianca Saad said that given the multiple components required to limit virus spread in the workplace, businesses should identify one employee as being in charge of and clearly assigned responsibility for COVID-19-related duties.
“There are a number of things you’d want to take into consideration,” she said, “For example, things like, how are you going to support healthy hygiene practices in the workplace?”
Someone should be in charge of procuring cleaning and protective equipment supplies, including having backup vendors in case materials become scarce; someone should also focus on how to maintain cleaning protocols and determine what cleaning practices each area will require; and someone should focus on reminding and enforcing the company’s COVID-19-related policies.
In creating the return to work plan, Saad says employers will want to make sure they’re setting forth these different categories so they can then put the plan together. “It’s almost like having a plan for the plan.”
But, as CalChamber employment law expert Matthew Roberts points out, it’s one thing to have the plan, and it’s another thing to provide training on how to implement the plan and then enforcement to ensure that the plan goes forward.
“These are two very key points in making sure that your reopening is successful,” he said.
Above all, employers should remind employees that if they’re not feeling well, they should stay home.
And as California continues reopening, both employers and employees will learn more about how this pandemic has affected their workplace and themselves, but employers can continue to communicate with their employees — both virtually and in person — to create a healthy and safe workplace.
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