As we head into the 2020 holiday season while the COVID-19 infection rates in California continue to rise, employers should be mindful of the latest local, state and federal information and regulations, as well as the most recent administrative guidance from the Centers for Disease Control and Prevention (CDC) on how to maintain safe workplaces.
California mandates that all individuals wear a face covering at all times when outside of the home, unless an exemption applies. See our recent article on this topic here, which includes the full list of exemptions.
The mask mandate includes almost all workplaces, even those in which employees work outdoors, if they cannot maintain at least six feet of social distancing from others (not including members of the employee’s immediate household). Employees do not have a constitutional right to refuse to wear a mask. While there are limited exemptions on religious or disability grounds, the employer is entitled to require even those employees to wear alternative face protection (such as a face shield) or may grant unpaid disability leave to an employee who cannot do so.
Make sure you and your employees stay off the naughty list and wear a mask! Even Santa will be wearing one, though per Dr. Fauci, he’s immune (he has Santibodies!).
Remember that COVID-19 symptoms can range from mild to severe, and may appear any time between 2-14 days after exposure to the virus. Temperature checks or negative test results do not guarantee that an employee is COVID-19 negative.
Per the CDC, individuals displaying the following symptoms may have COVID-19: fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, and diarrhea. See the CDC's guidance here. If your employees are experiencing any of these symptoms, require them to stay home.
If an employee has symptoms or tests positive for COVID-19, that employee must isolate and quarantine and may not return to work until 10 days (or 20 days in severe cases) have passed since their symptoms first appeared (or, if they have no symptoms, the date of a positive test), provided that they’ve had no fever without the use of fever-reducing medications for at least 24 hours, and their other symptoms of COVID-19 are improving (though loss of taste and smell may persist for weeks or months and should not delay the end of isolation).
An employer also must determine whether other employees in the workplace were in close contact with the COVID-19 positive employee. The CDC currently defines “close contact” as having spent a cumulative total of 15 minutes or more over a 24-hour period within six feet of the individual that tested positive. The 15-minute requirement begins at least 48 hours prior to the appearance of symptoms or a positive test result. Employees who had close contact with a COVID-19 positive individual must quarantine for 14 days from the last date of known exposure.
Employees who quarantine due to a positive COVID-19 test or exposure may be eligible for paid leave pursuant to the federal Families First Coronvirus Response Act (FFCRA) (see our prior updates on FFCRA here, here, and here), or the California COVID-19 Supplemental Paid Sick Leave (CSPSL) (see our prior update on CSPSL here), depending upon which law applies to the workplace. Remember that unlike the FFCRA, employers subject to the CSPSL must pay employees who are required to quarantine at the employer’s request solely for precautionary purposes after a COVID-19 exposure.
If an employee tests positive, be sure to alert your Worker’s Compensation carrier about the positive test within three days of notice under SB 1159 (see our full SB 1159 update here). In addition, starting January 1, 2021, AB 685 will require the employer to give heightened notice of a positive case or exposure to your workforce and others (see our full AB 685 update here). LightGabler LLP has prepared a sample notice for this purpose.
For more resources regarding the employer’s response to COVID-19 in the workplace, click here.
This year will be less focused on "Elf on the Shelf" and more focused on "Purell in the Hotel." The CDC recommends that all holiday travel to any location be suspended because of COVID-19. You can see the CDC's full guidance on Thanksgiving and other holiday travel here. For those still planning to travel, the CDC recommends having visitors wash clothes and masks and keep luggage away from all common areas. Masks should be worn indoors and removed only when eating, drinking and sleeping.
Note that California has also established a travel advisory wherein persons arriving in California from other states or countries, including returning California residents, should self-quarantine for 14 days after arrival. California’s guidance can be viewed here.
As noted in the California guidance, employers are entitled to require employees to quarantine for 14 days if the employee opts to travel out of state, or travels via mass public transit (such as air travel, trains, buses, cruise ships or other group travel). Employers who are not subject to California’s CSPSL are not required to pay employees for this quarantine time, but the employee’s particular circumstances may qualify for paid leave under other laws (e.g., the FFCRA, local sick leave rules, etc.).
Employers also may require employees to quarantine if employees engage in behaviors considered to be high-risk (such as congregating with groups outside their immediate household and choosing not to wear a mask or socially distance by at least six feet). Determining whether any particular travel or behavior is high-risk and requires the employee to quarantine away from work will be in management’s discretion, but should be made carefully with the input of employment counsel.
If employers adopt a quarantine policy such as the above, they may also choose to deny vacation requests entirely if the extended absence (including any necessary post-return quarantine) would result in a hardship to the company. If you adopt a quarantine policy, it is important to provide notice to employees in advance to avoid surprising your employees with a quarantine when they return from traveling or large group gatherings; they may choose to delay their travel or alter their plans if they know if could result in an unpaid quarantine.
‘Tis the season to be cautious. It will be tricky this year to take the necessary precautions to keep employees safe at any in-person holiday party, without spreading a COVID-19 damper on the event as a whole. Skip the in-person party this year, and opt instead for a virtual gathering or employee holiday gifts to show your appreciation.
From all of us at LightGabler, we’re wishing you a socially distanced, hand washed, sanitized, face-covered and warm-hearted holiday season!
For questions regarding COVID-19 or other employment issues specific to your company, contact the employment attorneys at LightGabler.
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