On Wednesday, June 3, 2020, attorneys, Susan Bishop and Eileen Kennedy from SVO member, Berliner Cohen's Labor & Employment Law Group presented on how keep your establishment and employees safe as you reopen your business. Below are Q&A's from their presentation.

These answers are intended to provide helpful information based on hypothetical questions. They are not intended to serve as legal advice. Please consult directly with either Eileen Kennedy (at Eileen.Kennedy@berliner.com) or with Susan Bishop (at Susan.Bishop@berliner.com) if you need advice regarding your specific circumstances. Click here to visit their Labor & Employment Law website.

1. What are the workers comp possible issues with employees working from home? What is the employer "required" to provide for a home office?

The same types of issues that might arise while employees are working from the office. The key is to ensure that you provide the DWC1 form and understand that it is possible to file a workers’ comp claim although the employee is working from home. The employer is still permitted to investigate whether the injury is work-related. A preventative strategy is to provide employees with the safe equipment (i.e. ergonomically appropriate) to work from home. Provide employees whatever they need to perform the tasks assigned to them from home.

2. Are there any programs to address added relief for businesses that will be forced closed for an extended period? As an example, our non-profit relies on income as an event center and will have no income and very limited reserves.

There are PPP loans and other types of SBA loans (which is beyond the purview of this webinar). Check the SBA website and review your insurance policy for business interruption coverage.

3. Can/Should a CA business, in light of CA's constitutional right to privacy, 1) take employees' temperatures upon arrival at work site and 2) require employees (once or on-going) to take COVID-19 test(s) before returning onsite?

(1) Generally given the risk of exposure to COVID – 19 at the workplace, taking temperatures will not violate the right to privacy. All businesses should monitor the health of the workers, but does not necessarily mean the business must take the employees’ temperature. You could ask employees to self-report if they are experiencing symptoms of COVID 19, etc. (Check your local county or city public health order and the CDC industry guidelines to determine if your business has an obligation to take temperatures. Currently in general the answer is no.) (2) Generally, a medical provider determine whether the employee must take the test. In certain circumstances – where there has been a potential exposure to COVID 19, the employer may ask an employee to under a test for COVID 19 even without a medical provider’s input. Be flexible in terms of the employee’s ability to obtain a test if accessing testing facilities is too delayed due to costs or long waits.

4. What are furloughs, RIFs and proper temp screening protocols?

Follow the same protocols for RIFs as you would under normal circumstances, but be aware that the Cal-WARN and WARN may have exceptions due to the pandemic. For temperature screenings see https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

5. How are small businesses able to find adequate supplies like hand sanitizer, masks, and wipes when most rural cities don't have any in the stores? Is there an organization that can work with Chambers to supply wholesale orders?

Do the best you can. You may try eBay, Groupon, and etsy. Please beware of scams.

6. How to address employees who refuse to wear face coverings and social distance.

Employees may be subject to discipline, unless the employee has a unique issue where the employee’s medical provider recommended that the employee not wear a mask or face covering. If the latter is the case, then treat this on a case by case basis and determine if there is a potential reasonable accommodation.

7. What are other offices are doing?

Adding partitions, taping the floors, creating alternative work schedules, staggering lunches. The available options depend on the nature and size of the business.

8. I'd love to see a template/sample of the risk assessment required by the State of California.

https://covid19.ca.gov/industry-guidance. This is guidance, not a template.

9. If an employee is diagnosed with COVID-19 and they are sick longer than two weeks, have exhausted their FFCRA 80 hours, then does this go straight into other company policies FMLA, Sick Leave or would it be considered Workers Comp if the reason for being sick was due to coming into the office?

It could be all three provided the Company is covered under FMLA/CFRA.

10. Is it necessary to ask screening questions to every employee every morning as they enter the building? How about taking everyone’s temperatures?

It depends on your business’s level of risk for contracting COVID -19. Generally, low and medium risk businesses must monitor employee health but that does not necessarily require a daily screening test (either questions or taking a temperature). Providing guidelines to employees and requiring self-reporting of symptoms before coming to work is one way to monitor. Higher risk businesses may require daily screenings.

11. Our Inn is closed getting ready for a complete remodel, but our restaurant will hopefully soon reopen. When it comes to indoor dining, should we be looking at reducing our capacity numbers? What kind of protection mechanisms should we expect from our guests? I can imagine what the servers need to do, but what rules should we ask our guests to comply with?

Review the specific county and city public health order where your business is located for social distancing requirements for customers. There may be reduced occupancy requirements and visitors may be subject to social distancing protocols per the county or city public health order.

12. What is the impact of reopening businesses if the virus is endemic (no vaccine is developed)? Consider the vulnerable (over 65, with health issues or family with health issues)

It is possible that businesses will be required to close again depending on the impact of the current reopening plan. Some employees, especially some vulnerable employees may decide not to return to work. Employers, however, should not decide to refuse to allow employees age 65 or older not to return to work – treat such issues, if raised by the employee on a case by case basis.

13. What type of health screenings are required in Santa Clara County/San Jose. What records need to be kept?

See answer to #10. Santa Clara requires a report to the local public health officer of confirmed COVID 19 cases. If your business sends home an employee for failing a screening test (suspected COVID 19 case), we recommend as a best practice to keep records of the reason the employee was sent home (in the event the employee challenges the employer’s decision to send the employee home).

14. When the County will allow opening?

See Santa Clara County updated Shelter in Place Order effective June 5th.

15. Are people required to wear a mask while seated at their workstation in an office environment?

The specific county or city public health order should specify when face coverings or masks are required. Typically an office environment is a lower risk and if completely enclosed in an office, an individual may remove a mask in some situations. Anywhere else within the office, a mask or face covering must be worn. (This is true of most Bay Area counties, but check your specific county.)

16. If masks are required at all times while at work, can personnel remove for eating/drinking while inside the facility, or must they go outside to remove masks/eat/drink?

They may remove the face covering to eat/drink at work, but other protocols must be maintained, such as remaining six feet apart.

17. Where in the rules does it allow people to take off masks at their desks? Doesn't Santa Clara order say at all time in the facility due to ventilation?

In a closed office when presenting or speaking over a telephone or via other electronic means – the employee may remove the mask. Look under the “Learn What to Do” tab.

18. Are employers required to do a health screening check of all employees entering the facility? Can the employer request that each employee does a self-screening at home before starting their shift?

It is strongly recommended, but the nature and extent of the screening will depend on the type of business and risk category. Some businesses are required to conduct screenings. In most situations, the employer can either have the employee self-certify (survey or questionnaire) or have an actual person screening.

19. The CDC most recently came out saying it doesn't last on surfaces like they thought.

We agree that the information we are receiving from the CDC has been changing.

20. The order requires that people wear face coverings at all times when at businesses or on public transportation. Does this mean that I cannot eat or drink?

No, you may remove a mask to eat or drink.

21. What if I have shortness of breath?

There are medical exclusions for individuals who have shortness of breath – however, an individual with a medical excuse for not wearing a mask or face covering may not be permitted to enter work. The requirement that you wear face coverings when at businesses or on public transportation does not prohibit you from removing your mask to address basic biological necessities. For example, you may remove your mask to eat or drink or if you are suddenly short of breath and feel a need for more air. You should replace your mask as soon as possible. You should wash your hands or use hand sanitizer both before and after handling your face covering.

22. Santa Clara County updated section "s" in the health order to include reporting COVID positive cases to the health department at: 408-885-4214 and coronavirus@phd.sccgov.org. Other counties such as San Mateo did not update section "s". If we reply on the most strict standard, do we report San Mateo positive cases to Santa Clara county?

If a confirmed COVID-19 case occurs in the workplace, and your business is located in SCC, report the confirmed case.

23. Self screen OK at home by employees?


24. Are you saying that employer right to take employees' temperatures trump CA constitutional right to privacy?

Yes, but only due to the pandemic.

25. I was informed that taking a temperature is considered a medical 'procedure' and can only be done by a medical professional.

No, a trained employee may screen by taking temperatures.

26. Medical professionals are advocating for screening questionnaire as absence of a temp doesn't indicate absence of infection and vice versa.

Correct, the temperature is only one aspect of monitoring the employees’ health.

27. Are mask required for inside of low risk business office?

Yes, look to the specific county and city where your business is located.

28. Almost all our staff are volunteers, are there different guidelines for volunteers?


29. What are the required postings regarding COVID-19?

See the specific county and city where your business is located. Generally, the postings inform individuals of social distancing protocols within the facility (ie do not come in if experiencing COVID 19 symptoms, etc.)

30. What if an employee calls in sick on a Friday saying he has a cough and is all better to come to work on Monday but the crew that worked with him the previous day said he never coughed once. Do we require him to get a doctor's note or get tested for COVID 19?

The crew’s information is not relevant. He has a cough which is a symptom of COVID 19 – ask him to stay home and follow the CDC’s recommended steps for potential COVID 19 exposure.

31. What are possible workers comp issues with employees working from home?

Some examples might be carpal tunnel, work related stress etc. Try to control the ergonomic issues, as this should help reduce work-related injuries.

32. Do you have any information on a recommended template for the required risk assessment?

No, not a template for determining the risk assessment of the business; however, check the guidance from OSHA. It has good information. See: https://www.osha.gov/Publications/OSHA3990.pdf Also, see https://covid19.ca.gov/industry-guidance/

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