The Employer Playbook for a Safe Reopening, issued by Governor Gavin Newsom and the California Department of Public Health (CDPH), offers guidance to help businesses reopen and provide a safe, clean environment for employees and customers. The following article highlights key provisions in the guidance for managing a COVID-19 outbreak in the workplace.
Managing an Outbreak
First of all, the governor’s playbook is designed to supplement, not replace, other guidance issued by the CDPH, the California Occupational Safety and Health Administration (Cal-OSHA), the U.S. Centers for Disease Control and Prevention (CDC), and the local health department (LHD) in the county or counties where the business is operating. It doesn’t apply, however, to health care, congregate living settings, or other workplaces covered by the California aerosol transmissible diseases standard applies.
Each employer is responsible for protecting employees’ health and well-being and appropriately responding in the event of an outbreak. Previous CDPH guidance provided that before reopening, all facilities must:
- Perform a detailed risk assessment and create a site-specific protection plan;
- Train employees on how to limit the spread of COVID-19;
- Set up individual control measures and screenings;
- Put disinfection protocols in place; and
- Establish physical distancing guidelines.
The new handbook adds another element to the site-specific protection plan, namely, the steps for responding to a positive COVID-19 case or outbreak.
Outbreak Identification Preparedness
You must designate a workplace infection prevention coordinator to implement the response procedures and manage coronavirus-related issues in the workforce. Employees must stay home and notify you if they are having COVID-19 symptoms, were diagnosed with the virus, or are awaiting test results for it. In coordination with the LHD, you must develop mechanisms for tracking suspected and confirmed cases among your workers.
So that sick employees can stay home without penalty, you’re encouraged to implement generous and flexible leave policies. Covered employers with fewer than 500 employees must notify them of their right to take paid leave under the federal Families First Coronavirus Response Act (FFCRA).
Under California Executive Order N-51-20, there is a statewide paid sick leave mandate for food-sector workers of employers with 500 or more employees. In addition, several counties, including Long Beach, Los Angeles, Oakland, San Francisco, and San Jose, have enacted laws requiring supplemental paid sick leave for COVID-19.
In addition to paid sick leave protections, eligible employees are entitled to take up to 12 weeks of job-protected leave under the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) to deal with their own serious health condition or care for a spouse, parent, or dependent child with a similar condition.
Communication of Identified Cases of COVID-19 to LHD
Identify the contact information for the LHD officials in the county or counties where your workplace is located, and notify them (in accordance with their reporting criteria) if you encounter a known or suspected outbreak of COVID-19 at work. Some counties require employers to notify the LHD if three or more employees test positive in a 2-week period.
The governor’s guidance encourages employers to work with the LHD and follow its guidance on isolating or quarantining individuals, testing, and returning to work.
Communication of Identified COVID-19 Cases to Other Employees
If an employee tests positive for (or is suspected of having) COVID-19, you must follow the local, state, and federal public health recommendations in effect at the time. You must notify all employees who were potentially exposed to the worker with the virus.
When communicating with other employees, you must maintain the confidentiality of the worker with the suspected or confirmed COVID-19 infection, which means you may not identify the individual by name or disclose his health status. Guidance from the California Department of Fair Employment and Housing (DFEH), updated on July 24, includes the following template notice you can give to other personnel:
[Employer] has learned that an employee at [office location] tested positive for the COVID-19 virus. The employee received positive results of this test on [date]. This email is to notify you that you have potentially been exposed to COVID-19 and should contact your local public health department for guidance and any possible actions to take based on individual circumstances.
Anyone who was in close contact with the individual should be provided with instructions on quarantining at home, monitoring for symptoms, and contacting a medical provider or the LHD about testing. You also should identify the closest COVID-19 test sites and provide information about sick leave rights under federal, state, and local laws and company policies and the requirements for returning to work.
In some outbreaks, employees who were never symptomatic and didn’t have close contact with any confirmed case may continue to work, provided the company has implemented all control measures recommended by the public health authorities, Cal/OSHA, and others.
Preventing Further Spread at Work
You should seek guidance from the LHD to develop a testing strategy (to determine who needs to be tested) or alternative methods for controlling the coronavirus outbreak, such as (2) tracing all close contacts of confirmed cases and instructing them to quarantine or (2) temporarily closing the workplace and quarantining all workers. You should conduct telephone interview of employees with COVID-19 to identify:
- The time when the symptoms began;
- The shifts they worked during the infectious period; and
- Other workers with whom they had close contact during that stint.
The guidance defines a “close contact” as someone who spent at least 15 minutes within 6 feet of an individual with COVID-19 during the infectious period, including the 48 hours before she developed symptoms. Instruct close contacts to quarantine at home for 14 days from their last known contact with the infected employee, get tested for the virus, and self-monitor for symptoms.
Employers’ Cleaning Guide
Don’t enter an infected employee’s work area until it has been cleaned and disinfected with products approved for COVID-19 by the Environmental Protection Agency. The work should be conducted by cleaning staff trained to use the products safely and supplied with all required and recommended personal protective equipment (PPE).
After an employee with COVID-19 is identified, you should conduct ongoing enhanced cleaning and disinfection of the work areas. It’s critical to regularly clean and disinfect frequently touched surfaces, such as doorknobs, equipment, and handrails.
Recording and Reporting Coronavirus Cases
As with any other occupational illness, you are required to record on Cal-OSHA forms 300, 300A, and 301 (or equivalent forms) any work-related COVID-19 fatalities, injuries, and illnesses that result in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or a significant injury or illness diagnosed by a physician or other licensed healthcare professional.
In addition, you must let Cal/OSHA know about any serious illness, serious injury, or death of an employee that occurred at the workplace or in connection with work within eight hours of when you knew or should have known about it.
Bottom Line
The Employer Playbook is a good resource because it summarizes pertinent information about a various of resources and provides an extensive list of federal and state assistance. Of course, it isn’t exhaustive, and you must remain current on other applicable state, county, and local health department guidance.
Cathleen S. Yonahara is an attorney with Freeland Cooper & Foreman LLP in San Francisco. You can reach her at yonahara@freelandlaw.com.