With the first phase of easing the stay at home order underway this week, slowly but surely, California is getting back to work.

Overall, the safety and health of your employees, and assuring them you are ready to comply with any requirements specific to your industry and local ordinance is imperative. Have your ordered appropriate PPE? Masks, hand sanitizer, disinfecting wipes and gloves are a few of the recommended or required items to have on hand and available.

Social distancing should also be enforced. This may include moving desks, rotating employees into workstations, or even staggering employees working from home when possible. If there is a shared break room or lunch area, consider removing seating to limit the amount of people that can congregate at the same time. 

Employees should prepare themselves that when they return to work, it will not be “business as usual” for some time. Employers may find it beneficial to schedule a virtual training or town hall meeting to discuss the changes and new protocols prior to re-opening. Topics to cover may include a staggered re-opening plan, new cleaning requirements, a change in operating hours, social distancing reminders and other specific steps your company is taking to make the transition back to work a smooth one. 

We have included some of the most frequently asked questions to date regarding returning to work. If you have a question that is not addressed, please reach out to a member of the consulting team for guidance. 

Question: What sort of plan or policy do I need to have in place before I start bringing my employees back to work? 

Answer: An exposure control plan should be defined and in place prior to bringing your employees back or as close to the return date as possible. Items that should be included in this plan are protocols for sending employees home, contact tracing in case an employee becomes sick with COVID-19, and cleaning requirements through the work area. This is not an exhaustive list. Please speak with a member of the consulting team to determine what should be covered in your specific exposure control plan. 

Question: When we re-open and bring our employees back, do they need to be put through our regular new hire process?  

Answer: Maybe. If the employee remained on your payroll, they may just need to be re-activated in your system. A change in status form should be used to document the return date in the personnel file. 

If the employment relationship was terminated and the employee was removed from payroll, you may need to go through your usual new hire process with the employee. Depending on how long the employee was gone, this may include a background check, new Form I-9, or benefits enrollment. Reach out to your consulting team for guidance on which scenario works best. 

Question: Can I require my employees to wear masks?  

Answer: Yes. However, if you require masks, you must be prepared to provide them to your employees or reimburse them for their own purchase. Also be alert to specific ordinances which may require masks, regardless of employer preference.

Question: What happens if one of my employees requests an accommodation to not wear a mask? 

Answer: Some employees may have a medical or religious purpose to not wear a mask. If an employee requests an accommodation, employers should enter into the interactive process with the employee to determine if an accommodation can be made. 

Question: Can I take the temperatures of my employees before they enter the workplace? 

Answer: Yes. Until further guidance is issued, employees can be required to have their temperatures taken before they begin work. Non-exempt employees must be compensated for this time. If an employee has a high temperature and is sent home, reporting time ray rules would apply. 

It is important to note that California employers may be subject to the California Consumer Privacy Act (CCPA). If this is the case, you are required to provide your employees with a compliant notice prior to or at the time of the collection of data. Reach out to your consulting team for this resource. 

Question: Are employees able to refuse to return to work, even after the order is lifted?

Answer: An employee may refuse to return to work only if they believe they are in imminent and immediate danger. The Occupational Safety and Health Act (OSHA) states that an imminent danger is “any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” Additional information about the requirements to meet an “imminent threat” can be found here

Question: We have called our employees back into the office. One of our employees still has a child at home due to a school closure. Would they qualify for any type of leave?

Answer: Potentially, yes. If your company is required to comply with the Families First Coronavirus Relief Act (FFCRA) and their child meets the criteria listed, they may be able to take up to 12 weeks of Emergency FMLA (EFMLA). However, if you have under 50 employees and meet the qualifications for the small business exemption, your employee may not qualify for EFMLA. 

While the first two weeks of EFMLA are unpaid, the employee can elect to use Emergency Paid Sick Leave (EPSL) during this time. Using these benefits concurrently would entitle the employee to 12 weeks of leave paid at two-thirds their regular rate. 

Question: If an employee contracts COVID-19 and claims they were exposed at work, can they file a workers’ compensation (WC) claim? 

Answer: Yes. Workers compensation benefits are available to employees who become ill while performing services at their workplace. An employee that contracts COVID-19 and that meets the following criteria will most likely be eligible for WC benefits: 

  • The employee tested positive for or was diagnosed with COVID19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction;
  • The day referenced above was on or after March 19, 2020;
  • The employee was not working from home;
  • A test confirms the diagnosis within 30 days of initial diagnosis.

*BREAKING NEWS: Governor Newsom issued Executive Order N-62-20 on May 6, 2020. This order states that workers’ compensation benefits are available to employees who become ill with COVID-19, under certain circumstances. We will continue to monitor this order and bring you updates as they are released. 

In Conclusion
While these questions are all pressing, it is also important to continue to think ahead. What happens if there is a resurgence? Do you have the resources and a plan to prepare for another business closure? 

As has been the case throughout this pandemic, there are frequent and rapid changes. Contact us with your questions and be on the lookout for our next return to work resource.