By Gary Gansle and Jill Ripke

Governor Gavin Newsom has updated California’s limited Stay at Home order with additional restrictions on a regional basis (the “Regional Stay at Home Order”).  The Regional Stay at Home Order, announced December 3, 2020, will go into effect within 48 hours in regions in California (defined below) with less than 15%  intensive care unit availability. As described in the Regional Stay Home Order FAQ, it “prohibits private gatherings of any size, closes sector operations except for critical infrastructure and retail, and requires 100% masking and physical distancing in all others.” The Regional Stay at Home Order will remain in effect for at least three weeks and will be lifted when a region’s projected ICU capacity meets or exceeds 15%. This will be assessed on a weekly basis after the initial three-week period.

The five regions and the counties making up those regions are as follows:

• • Northern California: Del Norte, Glenn, Humboldt, Lake, Lassen, Mendocino, Modoc, Shasta, Siskiyou, Tehama, Trinity
  • Bay Area: Alameda, Contra Costa, Marin, Monterey, Napa, San Francisco, San Mateo, Santa Clara, Santa Cruz, Solano, Sonoma
  • Greater Sacramento: Alpine, Amador, Butte, Colusa, El Dorado, Nevada, Placer, Plumas, Sacramento, Sierra, Sutter, Yolo, Yuba
  • San Joaquin Valley: Calaveras, Fresno, Kern, Kings, Madera, Mariposa, Merced, San Benito, San Joaquin, Stanislaus, Tulare, Tuolumne
  • Southern California: Imperial, Inyo, Los Angeles, Mono, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, Ventura

In regions where the order is triggered, the following businesses will be required to close: Restaurants for all on-site dining (but not take-out or delivery), wineries and breweries, playgrounds, indoor recreational facilities, hair salons, personal care services, museums, movie theaters, cardrooms, and family entertainment centers. Other sectors will have additional modifications; for example, retail stores and shopping centers can stay open indoors at a cap of 20% capacity. Hotels may remain open for critical infrastructure support, as can offices. Places of worship can hold outdoor services only. In what will likely be perceived as good news by parents, schools serving K-12 students will not be affected by the order. Those open for classroom instruction now can remain so. Further detail is provided in the Regional Stay at Home Order.

Importantly, the Governor’s office expressly reminded Californians that counties can have more restrictive criteria. Click here to see the status for a specific county. To go to the state’s website and review the FAQs regarding this latest updated order, click here.

Companies doing business in California should consult with experienced legal counsel about how this Regional Stay at Home Order may impact their business operations.

 

By Jon Daryanani, Jill Ripke, Lindsay Holloman

 On December 2, 2020, the City of Los Angeles issued a Targeted Safer at Home Order (the “Order”).  The Order provides that, “subject only to the exceptions outlined in this Order, all persons living within the City of Los Angeles are hereby ordered to remain in their homes.”  The exceptions include a list of 26 essential activities such as healthcare operations, grocery stores, agricultural, gas stations, banks, etc.  The full details can be found in the Targeted Safer at Home Order.

The Order also prohibits all public and private gatherings of any number of people from more than one household except for outdoor faith-based services described in the order and in-person outdoor protests while wearing a face covering, maintaining social distancing, and observing the Los Angeles County Protocol for Public Demonstrations.

The Order also includes limitations on 15 activities and business sectors including but not limited to beaches, personal care establishments, fitness facilities, libraries, and breweries and wineries.

The Order is similar to the County of Los Angeles Temporary Targeted Safer at Home Heath Officer Order that became effective on November 30, 2020, which is found here.

Companies with questions about either order should contact experienced counsel.

By Heather Sager, Jill Ripke, Lauren Kulpa, Brittany Sachs, and Sara Davey

On December 2, 2020, the CDC updated its guidelines to provide two options to shorten the time frame for which individuals exposed to COVID-19 are to quarantine. The CDC continues to recommend that individuals who are exposed to COVID-19 quarantine for 14 days after exposure. However, the CDC’s new guidelines provide two alternative options to the 14-day period:

1. Quarantine can end after 10 days so long as the exposed individual did not exhibit symptoms of COVID-19 during the quarantine period.
2. Assuming diagnostic testing resources are available and sufficient, quarantine can end after 7 days if the exposed individual receives a negative COVID-19 test and did not exhibit symptoms of COVID-19 during the quarantine period. The testing should take place within 48 hours before the time the individual plans to end the quarantine. This means if the individual wishes to stop quarantining after the 7th day, then the individual may take the test 48 hours before the end of quarantine. Note that the individual must still quarantine for the entire 7-day period even if the individual receives a negative test result prior to the end of quarantine. And, if the individual does not receive the test result by the 7th day, the individual must still quarantine until receiving the negative test result.

The CDC also recommends that if the individual meets the criteria of one of the two alternatives above and ends the quarantine before the 14-day period, the individual must:

• Continue to monitor for symptoms of COVID-19 through the 14th day following exposure;
• If the individual has symptoms, immediately self-isolate and contact their local public health authority or healthcare provider;
• Wear a mask, stay at least 6 feet from others, wash their hands, avoid crowds, and take other steps to prevent the spread of COVID-19 until the end of the 14-day period.

The CDC made clear that it “continues to endorse quarantine for 14 days,” and further provided that “Local public health authorities make the final decisions about how long quarantine should last in the communities they serve, based on local conditions and needs. Follow the recommendations of your local public health department if you need to quarantine.”

While the CDC’s quarantine alternatives permit employees to potentially return to work earlier than the 14-day period after exposure to COVID-19, the new guidelines may cause difficulties for employers, particularly multi-state employers. For example, the CDC’s guidance makes clear that local public health authorities can override the alternatives and require a full 14-day quarantine period, making a uniform rule regarding returning to work after exposure difficult for multi-state employers. Additionally, employers will need to consider the availability of testing in the area and determine whether the exposed individual will be able to work in conditions where the individual is able to maintain 6 feet from other employees and avoid crowds for the remainder of the 14-day period. Finally, employers should recognize that, as the CDC indicates, permitting employees to return to work earlier than 14 days after exposure may result in an increased transmission risk.

Employees are likely to have questions for their employers regarding this updated guidance from the CDC. Employers should reach out to a Perkins Coie Labor & Employment attorney to proactively discuss the best strategies for their circumstances.

 

 

By Heather Sager, Jill Ripke, Brittany Sachs and Matthew Goldberg

On November 19, 2020, Cal/OSHA voted 6-0 to implement sweeping new temporary emergency COVID-19 regulations (COVID Regulations) which require employers to implement a written COVID-19 prevention program with 11 categories of protocols covering everything from employee communications to appropriate face coverings. Crafting a compliant COVID prevention program will take significant time and resources. See below for a more detailed overview.

In addition, the COVID Regulations impose mandatory quarantines for positive tests and exposure to those who have tested positive, and require employer-provided testing. The full text of the regulations is available through this link.

The COVID Regulations apply to all employees and all places of employment except for: (1) places of employment with one employee who does not have contact with other persons; (2) employees working from home; and (3) employees working in health care facilities, services or operations, as defined by section 5199—see link—of Cal/OSHA regulations.

The COVID Regulations, promulgated by Cal/OSHA via California’s emergency rulemaking process, will go into effect pending review by the California Office of Administrative Law—to be completed within 10 days—and will stay in place for 180 days.

In a press release dated November 20, 2020, Cal/OSHA stated that it will expeditiously convene a stakeholder meeting that will include industry and labor representatives to review the requirements of the emergency regulation and solicit feedback and recommend updates. Full press release available here.

New Expanded Contact Tracing in “Exposed Workplaces”

Pursuant to the COVID Regulations, employers must have procedures in place to identify and contact trace COVID-19 cases in the workplace and to notify employees of a “COVID-19 exposure” and/or if an employee was in an “exposed workplace.” Employers must also offer free testing during work hours to all employees whom are identified as having had potential exposure in the workplace. The frequency of testing depends on the nature of exposure and the number of cases at the workplace.

The COVID Regulations define a “COVID-19 exposure” as “being within 6 feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the high-risk exposure period.” The “high risk exposure period” is defined as:

(1) For persons who develop COVID-19 symptoms: from two days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved; or

(2) For persons who test positive who never develop COVID-19 symptoms: from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected.

Under the COVID Regulations, “exposed workplace” means any work location, working area, or common area at work used or accessed by a COVID-19 case during the high-risk period, including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. The exposed workplace does not include buildings or facilities not entered by a COVID-19 case. Please note that this requirement is similar to the notification requirements within AB 685, prior post available here, which becomes effective on January 1, 2021.

New Mandatory Quarantines for Exposed Workers

The COVID Regulations also require employers to exclude employees with a COVID-19 case and/or employees with a COVID-19 exposure from the workplace as follows:

(A) COVID-19 cases with COVID-19 symptoms shall not return to work until: (1) At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications; (2) COVID-19 symptoms have improved; and (3) At least 10 days have passed since COVID-19 symptoms first appeared.

(B) COVID-19 cases who tested positive but never developed COVID-19 symptoms shall not return to work until a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test.

(C) Employees with a COVID-19 exposure shall be excluded from the workplace for 14 days after the last known COVID-19 exposure to a COVID-19 case.

Even more burdensome, employers must continue to pay employees their regular earnings during the mandatory quarantine period. An employer’s obligation can be offset by other available benefits such as workers compensation and leave under the First Families Coronavirus Response Act (FFCRA). Please note that employees who have had a COVID-19 exposure, but who have no symptoms and have not tested positive for COVID-19 are not eligible for FFCRA leave. As worded, the regulations strongly suggest that even if an employee is eligible for FFCRA leave, the employer still has the obligation to pay the difference between the FFCRA leave amount and the employee’s regular earnings. Employees also can use sick leave. The pay requirements do not apply to any period of time during which the employee is unable to work for reasons other than protecting persons at the workplace from COVID-19 transmission or if the employer can demonstrate that the COVID-19 exposure was not work related.

New Requirement of a Written COVID-19 Prevention Program

The COVID Regulations also mandate that employers implement a written COVID-19 prevention program—including eleven topics—which formalizes and greatly expands the industry guidelines, available here, published and updated by the state of California since this spring.

A full list of the required COVID-19 prevention program topics is listed below:

1. System for communicating COVID-19 policies to employees
2. Identification and evaluation of COVID-19 hazards
3. Procedures for investigating COVID-19 cases in the workplace
4. Correction of COVID-19 hazards
5. Training and instruction on protocols
6. Protocols for ensuring physical distancing of 6 feet or more between employees in the workplace
7. Standards and procedures for the employer to provide face coverings to employees
8. Engineering/administrative controls and personal protective equipment
9. Recordkeeping requirements
10. Exclusion of COVID-19 cases
11. Return-to-work criteria

Next Steps

Employers should immediately contact counsel to fully understand the ramifications of these regulations on operations, as well as strategies to mitigate the impacts of these regulations. These regulations in conjunction with the reporting requirements of AB 685 which take effect January 1, 2021, have major implications for employers. Given the cost of complying with these measures, and the impact of SB 1159 (which expands the presumption of workers’ compensation liability for COVID-19 illness in California) prior post available here, to the extent feasible, employers should consider limiting the workspace to individuals who cannot perform their duties remotely. Further, the Cal/OSHA regulations likely will serve as a template for similar laws in other states and/or federal OSHA standards.

 

By Jill Ripke and Lindsay Holloman

California has issued a Limited Stay at Home Order (Order) for counties under Tier One (Purple) of California’s Blueprint for a Safer Economy, requiring that all gatherings with members of other households and all activities conducted outside the residence, lodging, or temporary accommodation with members of other households cease between 10:00 p.m. PST and 5:00 a.m. PST, except for those activities associated with the operation, maintenance, or usage of critical infrastructure or required by law. The order does not apply to persons experiencing homelessness.

The order takes effect on November 21, 2020, at 10:00 p.m. PST. The Order will remain in effect until 5:00 a.m. PST on December 21, 2020, and may be extended or revised as needed.

For counties that move into Tier One (Purple) after the effective date of this Order, the terms of this Order shall apply at 10:00 p.m. PST on the second day after the county is assigned to Tier One (Purple).

Current tier assignments can be found here.