Episode 97: Keeping Up with COVID-19 Guidelines

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, and back on the podcast today is Jennifer Shah of the Shah Law Group. Welcome back, Jennifer.

Thanks, Erica. I'm really grateful to be here today.

And I thought I'd have you back to talk about one of those favorite topics that we like to talk about, and that is just keeping up with all of these guidelines in 2020.

My head is spinning. I mean, I have to be honest with you. It is so hard to try to keep track. I go to these websites every week and I'm amazed at how much work has been done. Part of what's confusing, though, is they're often conflicting. You know, they're not advertised. You wouldn't know if you didn't go look. So it's really a little bit of a challenge, I think, for not only for obviously those of us in the legal field like you and me, but these poor employers who are also trying to run their business. It's just a nightmare, quite honestly.

It really is. And we've been saying this time and time again since we started this journey in March. And, you know, when I was preparing for today, I really started to think about, you know, we rely on the government for, of course, you know, for health, for safety. There's all sorts of safety nets in place. But when we look at employers and employees, yes, we rely on them to provide us with some interpretation. But I really can't recall when we have relied so much on their guidance and how quickly the guidance has changed. And, you know, we're now in the circumstance where I think even the agencies are struggling with how do we get this information out? How do we get everybody to be aware? How do we keep pace with all of the changes? So it's a really interesting time that we're in when you're looking strictly at we are now focused so much on the government agencies providing us with information.

And then on top of that, the way we're structured as a society and in the democratic process with the three different branches of government, we've got state, federal and local.

That's right, Erica. And you know, what's interesting to me is now we're going to have a change in philosophy on a number of these issues because of the election. So buckle your seatbelts because who knows what's going to happen at this point. One of the things I've told our clients is, look, we do our best to keep you up to date, but we're not superhuman either. I think we have to take what we can and really narrow it down. So what are the workplace safety issues? What are the workers comp issues? What are the wage hour issues? And really just try to realize that there may be some details that we're missing. And the good news is, from my own anecdotal experience with clients, these agencies have been pretty darned frustrating. We had Cal OSHA out visiting one of our clients last week. There were some things they hadn't done and the OSHA investigators said, we get it, let's just do them now. There were no penalties, there was no closure. Now, I don't want any of you to think that means you shouldn't try to comply. The reason this employer had that experience is because it was clear they had done their best. But even the folks who are evaluating in these agencies know that this is next to impossible.

So when we've recorded this podcast, we are following the election, we were now seeing Covid numbers start to increase again in California. We know we have the tier rubric that the governor's office has established at cdph. We talked on the podcast several weeks ago when counties started to move down and that allowed openings. But we also talked about the fact that there's going to be that possibility of things moving up and down. So that's something that employers, particularly those that are directly impacted by the tier rating, need to be aware of. But we also have the cdc, the federal agency that's been, you know, steering the ship, so to speak, for a lot of the information. And a couple of weeks ago, I think it was around right before Halloween, the CDC updated its contact tracing guidelines. And I've been monitoring it and you and I have talked about it, waiting to see does the state adopt it, you know, what should employers do? And so I thought it would be good for us to just talk a little bit about it. It was in the news, but there's been so much going on in the last couple weeks. What is this update that the CDC did? And really it was an update to their definition of close contact. Right.

And it's this idea of this cumulative sort of 24 hour rule that they have, right. About when did you have close contact? And of course, the reason they're using the term, Erica, is because that's how they define who has to be quarantined. Right. And then of course, the CDC has vastly changed their requirements on quarantining, post travel. And with the holidays coming up, that's a big deal. So the contact tracing is important. Because, of course, that's how we're trying to figure out, okay, somebody was diagnosed. Now who else may be likely to get sick, who we should stay keep away from, whether we're talking about going to church or bringing them into the workplace or going to the grocery store. So the CDC's changes are based on changes in their understanding and interpretation of science of what is going on in terms of how this virus works. I mean, I've been following this very bizarre situation.

In Denmark with the minks, where the minks have became infected. Now there's a strain of COVID that has been now passed on to humans, but that strain is much different. There's so much that is unknown, and I think the contact tracing requirements are a really interesting part of it. Now, California has adopted some of the CDC's rule. And really what I'm telling our clients is you got to figure out what the local department of health and your public health agency wants you to be doing. Because ultimately, one of the things that the CDC has said, the governor's office has said and Department of Public Health have said is we're going to defer to the local regulators. So if there's one thing you really got to keep on top of is what your local city and counties are doing, because they talk about the CDC's rules, they talk about DPH, Department of Public Health here in California, they talk about those things. And so it's the best way for you to keep track of what is going on, because the definitions are gonna keep changing. And I think with the new administration, there are gonna be a lot of additional changes. Some I'm sure people agree with, some they don't. But it doesn't matter. Like I said, it's just going to be is what it is.

And I think that, again, that's been a theme that we've been streaming throughout all of our publications and communications as far as to the extent you can be flexible, you can be nimble, you do your best, do your best to comply. One thing that I thought was really helpful or helpful for us to let our employers know is remind them again of the contract tracing obligations they have. If somebody ends up having Covid or displaying Covid symptoms, there is that contact tracing exercise that employers do need to follow so that they can address and prevent further spreading in the workplace. And of course, now that it's getting colder, now that we have the holidays fastly approaching, these are some things that I, in my opinion, Jennifer, please feel free to chime in that employers should keep tabs. On to double check to make sure there hasn't been any new change. Whether that means on a weekly basis you have an outlook reminder that chimes for you to check in or you do it as part of your morning routine.

Seeing what's out there. The other thing that Jennifer has said previously on the podcast, and I think is very helpful, nobody should have to do this on their own. Designate somebody within the organization that is going to wake up every day and think about this issue. Now, not to think about where they completely lose their mind, but it's their responsibility to check the websites.

Well, and it's so important, Erica, because one of the things that's interesting with the contact tracing that the CDC came out with is they're saying, okay, they're still looking at the 6ft for 15 minutes, but they're looking at this idea of 15 minutes or more over a 24 hour period. So now they're breaking it down. They're not saying it has to be a 15 minute block. They're saying cumulatively. Right, And California has adopted the cumulative. But not the 24 hour period. Right, but it's still, oh wait, I'm sorry, I think I just got that opposite. So 24 hour. So the 24 hour period applies but, but not the cumulative side of things.

So they don't have the term cumulative in what I saw. Now again, is that just a typo when you're looking over a 24 hour period.

That's right.

I'm always looking at, okay, what's more comprehensive right now the CDC, because they're spreading out that 15 minute period, that period of time. So now it's, you know, okay, I, you know, employee A has it and maybe over a 24 hour period spoke with one person for a cumulative of 15 minutes. Well then that person who might have spent over 24 hours, you know, that then starts to include more potential exposure than under the old calculation, which is that 15 minute block of time.

Time. No, Erica, you're so right. And look, I got it confused because it's so confusing.

It's so confusing.

Well, and here's the reality. I mean this is sort of what I'm telling people. You've now got obligations under 685 under the Workers comp. Presumptions. Don't look for what the least you have to do, right? Just take, take a breath and say, okay, Jennifer was diagnosed. Who are all the people Jennifer may have come into contact with? Maybe it was over 26 hours or maybe it was over 18 hours or maybe it was just at all. I mean, you have to decide. And the problem is, once 685 goes into effect, you've got all these additional requirements in terms of reporting to the local agencies and reporting to Cal osha. Part of this is also, and I hate the term common sense, but part of it is also realizing, look, I'm trying to prevent Covid. Let's not lose track of why we're doing all this. A mask is not supposed to be a political statement. It's supposed to be the way we're going to try to protect Covid. Now, I understand that reasonable people differ about how effective the mask has been in doing that, and I'm not criticizing that at all. But I think we have to sort of, as the employer, in our role as the employer, we have to try to step aside from the political side of this and just look at our own workforce, our own liability, and our own sort of what we can live with.

Right.

You know, what is it that we're going to need to be able to do to be able to wake up in the morning and know that we've protected people as much as we can? It doesn't mean they won't get Covid. Right. I mean, we can do everything possible and they can still get sick. But what level are you going to agree to and what level can you live with? I honestly think that's what it's coming down to.

I agree. And I think for as employers, as HR professionals, as those who are responsible for ensuring that the workplace is safe, I get it. They're very. It's unclear where people are contacting or contracting Covid. There's so many. It's so confusing and it's defies logic in so many ways, even for the scientists and those that make a living studying this. And I get it. I know we hear from so many employers on the helpline saying that they could have gotten it from the grocery store or from just being out to dinner with family. Yes, I understand that. But we still have these obligations, so do your best to follow them. Keep tabs, like Jennifer said, with your local health departments. If you hear on the news of a guideline changing, check it out, take a look at it. If you have questions about it, contact Cal Chambers Labor Law Helpline. Contact Jennifer, contact your counsel. You know, just be diligent, I think is a really good way to go about it. Try not to fight the fact that this doesn't make sense, because none of it does. It's just a very challenging time right now, and it keeps saying, in March, we thought, oh, by the summer, in the summer, we thought all by the fall. And now I think it's just day by day.

Well, I've stopped telling Ella because Ella keeps asking me, my daughter, how much longer? How much longer? And now I just say, well, for today, for sure. I don't know what's going to happen tomorrow.

Sometimes it's easier just to go on that way. Anyway, lower expectations. All right. Well, thank you, Jennifer, as always. It's a pleasure.

Thank you, Erica.

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