Things to Remember as Workplaces Reopen

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:

• Dine-in restaurants;
• Wineries and tasting rooms;
• Movie theaters;
• Family entertainment centers (such as bowling alleys, miniature golf, batting cages and arcades);
• Zoos and museums; and
• Cardrooms.

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.

Mandatory Face Masks

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:

• Inside of, or in line to enter, any indoor public space.
• Obtaining services from the health care sector.
• Waiting for, riding on, driving or operating any public transportation or paratransit vehicle, taxi, private car service, or ride-sharing vehicle. Passengers must always wear face coverings; drivers and operators must wear face coverings when passengers are present, and face coverings are strongly recommended when no passengers are present.
• Engaged in work, whether at the workplace or performing work off-site, when in any room or enclosed area where other people outside their own household or residence are present and they can’t physically distance, when interacting in-person with any member of the public and when:
• Working in any space visited by members of the public, regardless of whether anyone from the public is present at the time; 
• Working in any space where food is prepared or packaged for sale or distribution to others; and
• Working in or walking through common areas, such as hallways, stairways, elevators and parking facilities.
• While in public outdoor spaces when it’s not feasible to maintain six feet of physical distance from persons not in the same household or residence.

Those exempt from wearing a face covering include children age two and under, as well as people:

• With a medical, mental health or developmental disability that prevents wearing a face covering;
• Who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication;
• 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;
• Obtaining a service involving the nose or face for which temporary removal of the face covering is necessary to perform the service;
• Seated at a restaurant or other establishment that offers food or beverage service while they’re eating or drinking as long as they maintain a distance of at least six feet from persons outside their household or residence;
• Engaged in outdoor work or recreation (such as swimming, walking, hiking, bicycling or running) when alone or with household members, and when they’re able to maintain a distance of at least six feet from others; and
• Who are incarcerated, as prisons and jails will have specific guidance on wearing of face coverings or masks for inmates and staff.

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.”

Employees Must Maintain Social, 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.

Antibody Testing Is a No-Go

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.

Tackling Training, Enforcement

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.