Episode 91: COVID-19: Moving Between Tiers

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chambers, General counsel and Executive Vice President. Joining me on the podcast today is Jennifer Shah. Our listeners recognize Jennifer as one of our favorite guests here on the podcast, and it is always a treat to have her join us. Welcome, Jen hi, Erica.

I'm so happy to be back. Thank you.

We always love to have you on the podcast. And today, Jen, once again, we're going to focus on how employers are coping with issues affecting them in the midst of the COVID 19 pandemic, because we're now in the middle of October and we're still dealing with this pesky little pandemic. So as most of our listeners know, recently the governor issued some new guidance for how counties will be evaluated going forward with respect to criteria for business operations and reopening. So as many of you have probably heard about the color coded tiered framework for reopening, that is what I'm referring to. And Jennifer, before we get into the nitty gritty, I just wanted to remind our listeners about what those four tiers include. So we have the top tier, which is purple. That's widespread. That's the highest tier that we have right now. Under that purple widespread tier, most non essential indoor business operations are closed. The threshold is more than seven daily new cases per 100,000 residents and a positivity rate of 8% or higher. The next tier is red, and that's a step below purple. The red tier means there's substantial cases. So here when we get into the red, and a lot of our counties are in the red right now, some of our non essential indoor business operations are closed, but some are open. So we see when we move from purple to red, that means that more indoor businesses are allowed to open. We know that we have allowed some schools to open in the red. And when we're in the red, that means we have about 4 to 7 daily new cases per 100,000 residents with a 5 to 8% positivity rate for a lot of the counties right now we are in the red. So this is a huge improvement. It's a positive change. But of course, there's more tiers that we want to get to. The next tier is that orange tier. That's where we're considered more of a moderate positivity rate. Some business operations can open with modifications. Now we're talking about 1 to 3.9 daily new cases per 100,000 residents, 8 and a 2 to 4.9 positivity rate. And then finally yellow, which is minimal. We are open, as open as we could be for the most part. There might be some modifications here. We have less than one daily new case per 100,000 businesses residents, excuse me, and a positivity rate of less than 2%. And one of the things that we should all be aware of, and this is clearly stated on the governor's website as well, and that counties have to stay in their tier for a time period before they can actually move to another tier. So we want to make sure that we're all aware of what this means. And all of the local county health departments have been communicating to businesses and have been putting forth quite a bit of information on their websites as well. So, Jen, this is a lot to talk about, but we're in the red tier right now for the most part. There's a couple counties throughout California that are in the orange, but it's safe to say most of us are either still in the purple or moving into the red. So we wanted to talk a little bit today about what does that mean when we move to the red. And quite frankly, the things that we're gonna talk about today really apply when we're moving in and out of any tier because the movement from one tier to another does raise change. It does raise the ability to bring some employees back. It raises issues with workplace flexibility as schools start to open. So let's just start talking about it.

Absolutely. Well, there are a couple things I think, Erica, for everyone to remember. First of all, this is not a one way road. So you can be in the red tier and then if things change in your county, you're going to go back to the purple tier, for example. And by the way, why purple is the worst, I have not been able to figure out. I think we all think red would be the highest tier. So once again, this is not intuitive as it could be. But I want everyone to understand that it doesn't mean you're always going down. You can also go back up. Santa Cruz county, for example, had this issue recently where they were in the purple, they went down to the red. And then because of really significant increase in Watsonville, part of Santa Cruz county, they went back up to the purple tier. So it's important to keep in mind it's not a one way street. Now in the red tier, things are better than in the purple tier. For example, retail operations can go up to 50% capacity. Mall food courts can open up again, Museums can open indoors. You can go to like a tattoo parlor or waxing salon. With certain modifications, people could go back to church, have cultural ceremonies and schools can open for in person instruction. Once that county remains in the red tier for two weeks now, bars and nightclubs that don't serve food are still closed. Saunas and steam rooms are still closed. So the point for employers is you have to know these numbers because they help you figure out how many people you can bring back. What is the situation going to be? Also remember that even when we get to yellow, it's very clear in this tiered system that we are not, quote, back to normal. The governor's message is we are never going to be back to normal. There are always going to be changes that we have to make in terms of workplace safety measures, policies about who can do what where. Those sorts of things are not going to change. So one of the things that I think is really important for businesses to recognize is it's not that this is a short term problem, okay? We are going to be dealing with the ramifications of COVID forever in terms of how we view the world, how we view Workplace Safety, OSHA's desire to monitor workplaces, to do audits of workplaces. None of this is going to change. So the reason I think that's so important, Erica, is I've had a lot of clients who've called to say, okay, well Jen, when this is over, at least we can go back to how it was. No, it's worth taking the time and energy to get everything in line right now because you're going to have to do this forever. I mean, there's going to have to be a different level of protection. Regardless of what tier you're in, it's never going to be back to normal.

I think that's a really important point to make out there and especially for some of those businesses that are able to open up a little bit more. So like you mentioned, estheticians, some of the personal care type industry and professions gyms are now able to open and the openings create a whole new dynamic for employers. Because now in addition to opening, you have all the safety protocols, you have all the record keeping protocols, which are things that we have to take into consideration as we're scheduling our employees, making sure that we have enough time for them to wash their hands, to take their breaks. And I know for some businesses this means you might have to hire or create a new position, you know, for someone to. I've noticed in my area, you know, at the restaurants, there's somebody that's just carrying around hand sanitizer or cleaning products, making sure that the entire area is clean.

That's correct, Erica. And you know what's interesting is that a lot of employers, like I said, are sort of going with this process, kicking and screaming. And what I mean by that is they've been through so much. There's been so much going on. I mean, supplemental sick leave for larger employers, the expansion of the cfra, the California Family Rights Act. I mean, there has been hit after hit after hit workers compensation presumptions. So now we're talking about these tiers. And I think there was initially this relief of, oh, okay, we're moving now to the red tier. This is going to make things, quote, better. But it is still very challenging. And the other problem is none of these government agencies can seem to make up their mind, understandably, because the science is changing and we're learning more about what's going on. But it's still frustrating. Like, are we supposed to quarantine? What do we do if someone goes to Mexico? There's just so much out there that employers are struggling with. And it's just important to stop and take a deep breath and realize, okay, the only way to do this is one step at a time. I've got to look at everything I'm required to comply with. I need to have someone in my organization who's responsible just for looking at the county health department. What are they saying I need to be doing? What are the new posters? I mean, Sacramento county just came out with a new equity ordinance, right? So we've got to be looking at what is applicable to me. And obviously your listeners are statewide, many outside of the state who have California operations. So we can't address what goes on in every county or every city. But the listeners really should know there's some due diligence that they've got to continue exercising to make sure they are dotting their I's and crossing their T's.

I think that's really important, Jennifer, because as you just alluded to, Sacramento county just has a new ordinance. All of the counties are creating empowering, passing their own ordinances. And sometimes these ordinances are tripping over the state laws that recently passed, many of which had urgency measures, which we talked about on the podcast, that took effect immediately as opposed to January 1st. So I think that is such a huge takeaway for our listeners today to really have your local county public health department bookmarked on your website and check it out daily. And the other thing that folks need to be aware of. So, for example, today is Tuesday. Every Tuesday is when the governor talks about, gives a new report. And so that's where we find out where counties are. Did some move, did some stay. What ends up happening is that announcement usually comes around noon. And then I'm noticing that a lot of counties are updating their ordinances that take effect, like at three o' clock that day. So. So there's not a whole lot of rhyme or reason. And some of it does defy logic, like Jennifer was talking about. Why 3 o'? Clock? That doesn't give me a lot of time to plan. But the point that I'm trying to make is checking it every morning is fine. Just recognizing that what you see this morning might be very different from what you see tomorrow morning.

That's exactly right. And, Erica, one of the things that I think I have really tried to do with our clients and, and with the people with whom we work is have some empathy. The bottom line is nobody's criticizing, nobody's trying to make your life more difficult. There is a public health emergency, and I realize that that has become a political issue. I just had a call with a client who was basically saying that masks are useless. It's all a political propaganda. I don't know the right answer. I don't work for the cdc. I'm not a public health specialist or criminologist or, you know, anybody who knows anything except a bit about employment law. But I think we have to be careful not to be sucked into the political side of things and realize that as an employer, we are required, regardless of our personal viewpoints, to comply with the Department of Public Health, to comply with our local public health authorities, to comply with the laws and the executive orders that are out there. So it really behooves us, I think, to just draw a bright line between what our personal views might be and what we have to do as an employer. Because the only one who will pay if you don't do that are you and your employees. You're not going to change anybody's mind politically. They're going to do what they're going to do. And what you have to do as a responsible employer is just do what is being directed of you. And I know that is not easy to do. I have fought against it at times as well, but it is really the only way to go right now.

I think that's absolutely spot on. And one more thing I wanted to talk about before we close today, and this is along those same lines, is worker flexibility to the extent possible. And what I'm talking about is schools are now at least depending on the tier, there is the ability to partially open and each school is going to do something different, each district is doing something different. The challenges we've noticed in some counties that have opened, then we see that we have Covid positivity happening at the schools, which then triggers other changes. So for a lot of employers and employees, while we might be able to open up more, our employees may not be able to be in all the time. It's kind of this ping pong. In this case, it's almost like the employee is getting pulled even more so in a couple directions. The direction of the employer opening up, the direction of the school that may be open, may not be open. What's some advice or some good takeaways that you could give our listeners in that circumstance?

Erica, that is such a good point. And that is exactly what I was talking about with empathy. Here's the bottom line. I know you'd rather know exactly when your employees are coming. I know you'd rather know exactly what's going on when they're teleworking. But you got to let go. Like, I just had this conversation with my sister who could not be more type A and more micromanager when it comes to how she runs her business. Now, she is very effective and she's very successful because of what she does. But I had to say to her, sweetie, you got to let go of some of this because you've got good employees. You hired them, you screen them, they're doing a great job. Your clients are happy. You're going to have to be more flexible. You've got to let go. And I think that is the only way to survive during this time. I used to have an incredible bias against people teleworking because I'm not an efficient teleworker. So I just figured anybody who's teleworking is half working and half making cookies or watching tv. I mean, I'm so wrong. We have amazing employees who telework. We have heard such great stories about the length to which employees are going to meet all of their obligations. I don't care if you're a single mom or a single dad or you live with 41 relatives, your life is tough, okay? It's hard. And if we don't have that empathy as a community, if we don't have the ability to show some grace, you are cutting off your nose to spite your face. Like you just can't fix it. You've got to be able to go with the flow a little more than you may be used to doing. So what that means is give an assignment, not the time during which they have to do the assignment. Do regular check ins. What do you need? How can we do better? We have a weekly call at our firm. I know some people don't want to do it, but it's 30 minutes and I want to know, what do you need? Can I help? And believe it or not, people start saying things when they realize, oh, okay, we can ask, you know, can I work on a Saturday, Jen, instead of working Monday through Friday? Because when school's in, I can't get my eight hours. Yeah, you can. Let's work it out. Let's figure out how to do this. So we have to remember there is no mold. The flexibility is critical. By the way, some local jurisdictions are mandating the flexibility. They're saying employers have to do this. So you know what? Just do it because it's good business. It's like making sure that you have inclusive policies in your workplace. Making sure that you're treating people fairly and consistently. It's good business. You will always come out better on the other end. And that is really what we're talking about here. So the flexibility may not be dictated by law yet. It very likely will be, but. But you are going to be way ahead on your balance sheet if you take these steps right now.

Oh, Jennifer, that is so well said and thank you so much. And I hope all of our listeners are able to tune in today to hear what we had to talk about. It's always so insightful. So thank you, Jen, for joining us today.

Erica, thanks for having me. You know how much I love this.

Thanks so much and thank you for joining us on the Workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.