Due to the shelters-in-place necessitated by COVID-19 (aka “Coronavirus”), the business world has changed dramatically since March of this year. Each state (and county) seems to have its own rules with regard to which businesses can reopen, when, and how. To further complicate matters, some employers are required to remain closed, while others can reopen if they take certain precautions and put strict policies and procedures in place. Below are some points to consider if you are an employer thinking about reopening, or an employee whose employer is reopening or about to reopen.
For Employers:
- Make sure to review federal, California, and county regulations and guidance regarding whether you are allowed to reopen, i.e., whether you are deemed an “essential business” allowed to be open during the current phase of reopening;
- If you run a business that is permitted to reopen, consider whether reopening is truly necessary for your particular office or facility. If it is, consider allowing some, if not all, employees to continue working from home to the extent feasible, at least until more guidance and information is released;
- If you run a business that is permitted to reopen and you decide to do so, ensure you comply with all reopening requirements. These vary from county to county, but generally require that businesses create, post, and enforce a social distancing policy (often explained in a form that can be found on each county’s/city’s website), and provide face coverings, soap, and hand sanitizer for personnel and any members of the public that might come into the business;
- Employers should also create and enforce a policy whereby employees are required to work from home if they have recently received a positive COVID-19 test result or have come into contact with anyone who has received a positive result;
- Encourage employees to get tested, and require they work from home if they report any COVID-19-like symptoms, such as cough, fever, loss of sense of smell, etc., unless and until they obtain a negative test result and are symptom free for several days.
- Certain businesses, such as summer camps and others, must enforce a policy requiring employees and customers to take their own temperature (or to allow it to be taken by other staff) before entering certain facilities;
- In the end, know that the rules and guidance are constantly changing. For this reason, prepare to be flexible and to change policies and procedures as necessary, while constantly monitoring state and local rules and guidance.
For Employees:
- If your employer requires you to return to work and you do not feel ready or comfortable, ask your employer to consider allowing you to work from home. If needed and applicable, obtain documentation from your healthcare professional in the form of a request for a reasonable accommodation;
- Prepare to wear a mask, use soap and hand sanitizer, and socially distance from other employees while at work;
- If you work for a private employer and do not wish to wear a mask or take other similar precautions as required, ensure that you obtain documentation from your healthcare professional in the form of a request for a reasonable accommodation with reasonable alternatives to wearing a mask and/or socially distancing, and provide that to your employer for consideration. For example, your doctor might say that a reasonable accommodation would be for you to continue working from home or for you to remain in a part of the facility where you will not come into contact with others, at which point you could remove your mask;
- No matter what, do not assume that you have a legal right not to wear a mask if your employer requires it, or to come to work with symptoms of COVID-19. This is a common misconception, and unless reasonable and supported by medical documentation, your employer is not required to oblige you. Regardless of your personal beliefs, failure to follow the employer’s instructions – unless supported by a reasonable request for an accommodation with documentation from a healthcare professional – will leave you at risk of discipline, and even possibly termination.
If you are an employer or employee in California and wish to discuss your rights and duties as the state begins to reopen, please feel free to reach out. We have been advising businesses and employees on these issues throughout the shelters-in-place and are ready to continue doing so as we all get back to work and reopen.
John Paul S. Deol is Senior Counsel with Dhillon Law Group Inc., and handles employment litigation and counseling.
