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California Workplaces Open in Stages, Raising New Questions for Employees

| May 28, 2020 | Discrimination & Harassment, Family & Medical Leave |

While the COVID-19 coronavirus continues to pose a health risk across the U.S., Governor Gavin Newsom plans to reopen the California economy in four stages under the “Resilience Roadmap.” But as businesses resume operations, how will employees be protected and protect themselves?

Stages 1 and 2

Now in Stage 2, the state has given the green light to lower risk workplaces – including non-essential manufacturing (toys, furniture, clothing, etc.), schools, childcare facilities, and retail businesses offering only curbside pick-up, and offices where working remotely isn’t possible. The governor retains the right, however, to modify the order to make the work environments safer for employees. Stage 1 focused on testing, contact tracing, PPE, hospital surge capacity, and safety in essential workplaces.

On May 12, Governor Newsom released guidelines for counties to reopen shopping malls, dine-in restaurants, and some office buildings, provided the municipalities formally attest that COVID-19 is under control locally. Since that date, outdoor museums, car washes, and pet grooming services have also been reopening.

Stage 3

The governor’s May 26, 2020, announcement opens the door to Stage 3. Soon, higher-risk workplaces – where employees have close proximity among themselves and with others – may resume business. Employers and activities in this category include hair and nail salons, barbers shops, gyms, movie theaters, and sporting events without live audiences, as well as churches, weddings, and other religious services. Currently, only hair salons, barbershops, and churches have started reopening, and the process varies across California’s 58 counties.

Construction companies, retail nurseries, landscapers, and gardeners have generally been allowed to resume because they are considered lower risk for spreading the coronavirus. Manufacturers and logistics operations (like warehouses) have also been allowed to reopen as long as they follow strict new guidelines.

Stage 4

California is not likely to reach Stage 4 for some time. At that point, Governor Newsom will end the stay-at-home order completely, which would allow for nightclubs, concert venues, and convention centers to reopen along with live-audiencesporting events.

Many unknowns remain as different counties handle processes differently, and several types of businesses have been unable to reopen due to a variety of governmental or self-imposed hurdles. Moreover, counties are free to backpedal and return to prior stages if COVID-19 cases spike.

A Lot of Head Scratching for California Employees

Despite these staged, staggered, and stringently measured reopening plans, what’s certain is that nothing is for certain. This creates difficult and unpredictable circumstances for employees throughout California. As the local and state economies reopen, employees will encounter many issues.

Despite the Stage 3 declaration, many employees who have been telecommuting may not be returning to their workplaces. Several counties are allowing offices to open only for employees who can’t work remotely and only if employers can implement safe practices for them. These employees should communicate with their employers about current short and long-term plans.

Depending on the county in which an employee resides, rules regarding childcare facilities will vary, and many people will not go back to work because they cannot or choose not to put their children in available facilities. It is essential that employees communicate with their employers about these issues. The Families First Coronavirus Response Act (FFCRA) requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified COVID-19-related reasons. But while the FFCRA provisions will apply through December 31, 2020, many employees will have used up the maximum 12 weeks of paid expanded leave or may be otherwise ineligible because of the increased availability of childcare. Also, employees called back to work after having been eligible for unemployment benefits while furloughed may no longer be eligible.

Employees called back to work but who do not wish to go because of an underlying condition or fearful of inadequate workplace protections may face issues with state and federal unemployment payments. California Pandemic Unemployment Compensation (PUA) of $600 per week is conditioned upon and employee otherwise meeting the state’s requirements for receiving unemployment insurance benefits. And while the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act provides unemployment compensation for individuals who have quit their jobs “for reasons related to COVID,” a generalized concern about being in the workplace will likely not qualify for California state and CARES Act compensation.

Intended to provide compensation that mirrors California and CARES Act payments, PUA continues to be available for independent contractors and others who do not otherwise qualify for state unemployment insurance benefits. PUA is similarly unavailable to individuals with a generalized fear of returning to work.

It may be easier to maintain benefits if an employee is in an “elevated risk” category. California’s public health department has indicated that people over 65, immunocompromised individuals, or those with serious chronic health conditions (i.e., heart disease, lung disease, or diabetes) should stay home instead of going back to work. Under the Americans With Disabilities Act and the California Fair Employment and Housing Act, these kinds employees may have good reason for refusing to return to work and still receive benefits if their employers cannot provide a reasonable accommodation such as an alternate position that allows telecommuting or alternate, less-risky job duties.

Depending on the severity of medical issues, some employees might consider whether they are eligible for state disability insurance. Please note applications must be submitted within 49 days of the first date the employee had to stop working because of disability.

Speak to an Experienced California Employment Attorney

These are complicated times posing complicated issues for employees in California and throughout the U.S. Like so many others, the lawyers at Outten & Golden are working remotely to keep our colleagues and families safe, but we are available to help you navigate the evolving COVID-19 employment landscape.

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