Episode 84: New DIR COVID-19 Guidance Issued

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Executive Vice President and General Counsel at the California Chamber of Commerce. Back on the podcast today are Bianca Saad and Matthew Roberts, two of Cal Chamber's employment law subject matter experts. Welcome. Bianca and Matt. Hi. Happy to be here.

Hi, Erica. Thanks for having us.

It's great to have the two of you back again. So recently the Department of Industrial Relations issued some new guidance related to COVID 19. It's actually called the Safe Reopening FAQs for Workers and Employers. And it was released on July 28, 2020. So today, Matt and Bianca and I, we're going to talk about this new guidance. So. So we wanted to make sure that our listeners are fully aware and informed on the issues being addressed. So let's talk about these FAQs. You know, it's interesting, as we've seen the months unfold, we've also seen and talked about a number of guidance documents that have been issued. Whether it's from the cdc, the dfeh, the eeoc, the list can go on and on. And this FAQ from the Department of Industrial Relations is added to the list. But as we were all looking at it, we thought that this list, these FAQs actually address a lot of common questions that we had been receiving on our labor law helpline and also answers that we were looking for from, you know, our enforcement agencies. Just to keep in mind, this document or this FAQ can be found on the DIR's website and we will have a link to it on the show Notes. In addition, it's important to note that the DIR states in this FAQ that this FAQ does address many workplace related issues as we work through the Resilience roadmap. So it still does refer back to the California Governor's Resilience Roadmap as well as the industry guidelines that has been published and have been published. One thing to note before we dive in, it's a really good idea for employers to continually look to these websites to see if any of the guidance documents have been updated because we are finding that in the dead of night some of these documents are updated and we're not receiving a lot of heads up, so to speak. So it's really incumbent upon all of us to continually check in with these different agency websites to make sure that the guidance we're following is up to date date. All right, gang. So as we were talking about, you know, we found that this FAQ was really interesting and we wanted to bring it to employers Attention because it does touch upon some unique questions. So for example, we know that the governor issued a face mask order or cloth face coverings order. And you know, we've received some questions with regards to, you know, whose responsibility is to provide provide the face coverings, who has to pay for the face coverings. And these DIR FAQs actually address it. Matt, you want to talk about a couple of the FAQs?

Yeah, absolutely. So, you know, as we were talking about, what is a California employer's responsibility in terms of providing or paying for face coverings for use at the work site? You know, California law requires employers to provide safeguards to their employees where it's necessary to render the work that they're doing. As you mentioned, the state has issued those face covering orders. Right. And in a number of circumstances in the workplace, we have to wear the face coverings. We've talked about it quite a bit on the podcast where we need to do it, but it's kind of a refresher. You know, it's in those indoor spaces where we have contact with the public, where we're preparing food in those common areas like hallways and whatnot. So there's clearly this requirement to have face coverings in the workplace. So that's going to trigger an employer's obligation to pay for these face coverings. What was really important about, I think the guidance in this was that the DIR says it doesn't matter if you let them take it home and use it on non work hours, you still have to provide this face covering for them while they're there at work. Now you don't have to let them use the face covering. Right. And it kind of gets my brain thinking, so like what are we going to do? Have everyone throw them in a basket and then we do the laundry for them kind of deal. Some of the guidance about this is funny when you think about it from a practical aspect, but in terms of what we provide for the employees, going to need to provide those face coverings where it's required under that state face mask order.

What about paying for the face coverings?

Yeah, absolutely. So that law requires us to provide it at no cost to the employee. Now they define face coverings as really something that will effectively cover the mouth and the nose. So there's not a prescribed type of face mask. Right. We get that question quite often on the helpline is, is there a specific type of face covering? And not exactly. It just needs to effectively cover the mouth and nose for them while they're working.

Excellent. And the California Department of Healthcare. They do have guidance that does tease out the face covering guidelines that we are dancing around as we're addressing the pay and providing question as far as who's responsible for providing that face covering. Thanks, Matt. The FAQs actually also address medical checks, which I think is so helpful because we've also been receiving questions surrounding medical checks. And like the face covering question, who is obligated to pay for the time that the employee is spending conducting the medical checks? Bianca, why don't you talk a little bit about what the FAQs say with regards to medical checks? Yeah, absolutely. So the guidance is great because it reminds employers about this idea, of course, of paying employees for all hours worked. And so it talks about medical checks and including temperature checks. For example, if an employer is going to require an employee to go through that medical check, which could include a temperature check at the beginning of their shift or on site before they're beginning the shift, then that does need to be compensated. Idea being that obviously this is done at the request and therefore under the control of the employer. So that is going to fall under the hours work category that does require compensation. Another helpful question that the guidance did address had to do with reporting time pay. In the instance where an employee is going to the work site, they're going through that medical check and then maybe due to their temperature, if they have to be sent home, do they need to be paid for reporting time pay? And in most cases, generally yes was the answer that we got from that. So confirmation of, you know, again, applying those principles. That's what we've been saying all along. But it's nice and it's helpful to have that guidance directly from the labor commissioner stating that. So just as a reminder for the reporting time pay, you know, that's going to be, you know, half of their regularly scheduled shift, no less than two hours and no more than four. Excellent. Thank you. Other questions that were addressed here in the FAQ have to do with returning to the work site. And we're receiving a lot of those questions as well related to employees have been working remotely and now the employer is opening up the workplace and asking those employees to come back in. There's a lot of question that comes around, what if I don't want to? Does my employer have to force me? You know, what if I live with someone who's in a high risk category? So, Matt, talk to us about what the FAQs are saying.

Yeah, absolutely. This has been one of those topics that has just never waned over the course of the pandemic, how do I get my employees back to the work site when we're ready to do this? If an employer has employees who are working remotely and they're ready to return people to the work site, generally we can bring them back. The DIR reminds us we have these health and safety protocols. The state has issued guidance on 30 something different industries. And so if you're complying with the state and industry specific guidance for the health and safety protocols and you have these remote workers, we can call them back and make them come back to work, even if they were able to do their job remotely. Now, of course, you have to consider the health and safety concerns, right? If we're bringing too many people back, can we really maintain the social distancing? Can we really keep everything clean? But the DIR is pretty clear that this is going to be really in your boat as the employer. Where things get a little bit tricky though, is you have those employees, and we're hearing this a lot, is I live with somebody who is at risk, right? I'm not necessarily the at risk person, but I live with somebody with a disability. They're immunocompromised, they're of an older, and the public health orders have put out guidance for these individuals just to stay home. So how does that relate with those employers who live with somebody like that? The DIR really says it's going to be based upon your local health orders, right? So if your local health orders come back and say somebody who is living with somebody who is immunocompromised, such as that needs a shelter in place and stay at home, then we need to talk with and work with those employees about that kind of issue. So maintain flexibility. It's always been a mantra of ours that we've been talking about since the pandemic started. Work with your employees on that. See if there's some kind of flexible scheduling, flexible work arrangements where we can really ensure isolation of these employees who are living with somebody and work through your local public health orders to see what specifically they have in place for you.

And I think that's really important. And I'm glad that the DIR is also highlighting the local health department and working with the local health departments. As Bianca knows extremely well, a lot of the localities have been passing their own local ordinances, their own local directives, some of which include penalties that attach. We also know that a lot of the local health departments are extremely busy. Sometimes it's difficult to get a live person on the phone. But most of the websites, I don't know, Bianca, you could speak to this, but most of the websites are very helpful and do have quite a bit of information for employers and how to address some of these issues. Issues, absolutely, yeah. And then finally the last FAQ that it's addressed, there's a total of 16 on the document, which I think this is a great question and I'm really happy that the DIR is addressing. It is waivers of liability. And you know, we're seeing this a lot. I mean, if any of you have gone into like a doctor's office, you're filling out the questionnaire about your symptoms and you know, schools are back and you know, different waivers of liability, so to speak. And specifically here the question talks about whether an employer can require workers to sign a form waiving rights under the Labor Code as a condition of returning to work. And I think what the employers are going for here is they're not going to get sued for maybe some kind of COVID related issue, maybe meal and rest break violation, who knows? I mean, the Labor Code, gosh, it covers so many requirements. So what does the FAQ say about waivers of liability? Yeah, so the DIR in their guidance, I mean, basically the short answer is no, we're not requiring our employees to sign these documents. Right. So the idea being that employees have these certain basic rights. They give the example, for example, that California employees are entitled to workers compensation if they for injuries or illnesses contracted during the course of their employment. They're also entitled to a safe and healthy workplace. These are statutory rights that they are not going to, that they cannot be waived. So bottom line, employers shouldn't be requiring these waivers. They're not. Again, they'll be invalid because those rights cannot be waived. Like I said, these FAQs, I think on balance were really helpful because they did address things that haven't been addressed before that are common questions that employers are receiving since the pandemic started. And again, we do have this on Cal Chambers Coronavirus resource page. This is included in our link of information and then we'll also provide a link to it in the show notes that accompany this podcast. But we really wanted to take the time today to let you all know about it because sometimes it can be a little bit overwhelming when we start to hear about different guidelines, different information that's available. It starts to get really difficult and challenging to keep track of all of this. And we wanted to bring this to your attention because we did feel that it answered a lot of commonly asked questions. And it's nice to hear from the enforcement agency what the answer is, so hopefully all of you will find it helpful. And again, thank you Matt and Bianca for being here again. Matt and Bianca talked to a lot of our members and a lot of Cal Chamber employers since they are on our Cal Chamber Labor Law helpline. So it' nice to have them here on the podcast. Thanks for having us.

Thank you.

Erica, thanks for joining us on the workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.