Californians have been under a stay-at-home order since March 19, 2020, that directs all “non-essential” California businesses to temporarily suspend in-person operations. Essential businesses and their “Essential Critical Infrastructure Workers,” as designated by the state public health officer, should incorporate the public health guidance from FDA, CDC, CPSC, FTC and local health authorities into operations. The following is a checklist of practical tips and recommendations for ongoing essential businesses that you may use in tandem with the public health guidances and orders: 

Deal with inquiries

  • If any officials, individuals or groups inquire about why your business is open, you must be readily able to provide documents demonstrating that your business is an essential business. If you are a California business, this will include:
    • A copy of the California Public Health Officer’s designated list of “Essential Critical Infrastructure Workers”; and
    • A letter written on corporate letterhead that:
      • Identifies the sector your business belongs to under the 13 categories of critical sectors;
      • Pinpoints why the work being conducted ensures continuity of functions critical to public health and safety, as well as economic and national security; and
      • Notes compliance with CDC, OSHA, and state and county guidelines.
  • Take local guidance into account.
    • Businesses should carefully review their county’s shelter-in-place order as well as county websites, which often provide answers to Frequently Asked Questions concerning essential business operations.
    • Confirm the functions performed are essential. For example, in Santa Clara County, businesses that conduct both essential and non-essential functions may only carry out their essential business functions in their facilities. While these mixed-function businesses must maximize remote work and comply with social-distancing requirements at the facility, the facility cannot continue to carry out non-essential business functions.

Provide clear communications to employees

  • Explain to employees why your business is an essential business.
  • Inform employees in writing that their decision to return to work is voluntary.
  • Provide employees with documentation for their travel to and from work.
    • Consider potential local road closures or other measures to ensure individuals who are on our roads are essential workers.
    • Provide employees with a contact name and phone number if they receive questions from a local official about their employment.
    • Note compliance with CDC, OSHA, and state and county guidelines.
  • Educate employees on how they can reduce the spread of COVID-19.
    • Communicate CDC’s action steps that employees can take to protect themselves at work and home.
    • If possible, provide additional safety gear or extra cleaning supplies to protect employees.
    • If possible, incorporate additional sanitation or cleaning steps.
  • Inform employees of their obligations.
    • You may require employees to self-report. CDC has stated that at the very minimum, staff should immediately notify their supervisor and the local health department if they develop symptoms of COVID-19.
    • You may ask employees about potential infection and related travel. The Americans with Disabilities Act (ADA) prohibits employers from asking employees about their health and medical conditions. However, the Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) provides that during a pandemic, exceptions to the ADA’s restrictions on employer health inquiries allow employers to inquire about an employee’s potential infection with the disease and related travel.
    • You may require employees to adopt infection control procedures and wear personal protective equipment. EEOC has advised that where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.
  • If one of your employees tests positive for COVID-19, DO NOT identify that employee to others.
    • Los Angeles County has explained that revealing private medical information about an employee violates the employee’s rights. While employees may guess who the infected person is, it is illegal for businesses to divulge that information.
    • CDC has also confirmed that if an employee has a confirmed case of COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the ADA.
    • If one of your employees has been in contact with someone who tests positive for COVID-19, employers may require that the employee stay home in quarantine for 14 days from the date of the contact.

Operating protocols for physical office space

  • You should NOT require employees to work onsite if your business is located in COVID-19 hotspot.
    • Employers should proceed with caution when giving employees ultimatums. It is unlikely that employers can compel employees to come in to work if they believe there is imminent danger.
      • Typically, employees are only entitled to refuse to work if they believe they are in imminent danger. However, considering the current health crises in the United States, in many circumstances an employee traveling to and from work may reasonably believe that they are in imminent danger. Most California counties have reported cases and the Bay Area should certainly be considered a hot spot.
      • Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.”
      • OSHA discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”

  • You may take employee temperatures.
    • EEOC and CDC have confirmed that measuring employees’ body temperatures is permissible given the current circumstances. However, employers should be aware that some people with COVID-19 do not have a fever.
    • To avoid claims of discrimination or retaliation, implement temperature checks for all employees (at all levels) rather than just one type of employee.
    • Protect employees who are taking the temperatures.
      • Because these employees will be in close contact with many people who may have the virus, employers should provide healthcare-level protective gear. OSHA and CDC guidance for healthcare employees assumes that they will have gowns, gloves, approved N95 respirators and eye/face protection.
      • Utilize no-contact thermometers if possible.
  • Maintain social distancing.
    • To the greatest extent possible, essential businesses should comply with social distancing requirements, including maintaining at least six-foot foot social distancing for both employees and members of the public at all times.
    • Employers should explore whether they can establish policies and practices, such as flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), to increase the physical distance among employees and between employees and others.
    • If people must work in close contact, keep track of contacts so you have a path to trace if someone is infected.
  • Ensure that cafeterias and lunch spaces comply with food-facility regulations.
    • Employers should make sure that worksite cafeterias operate like other food facilities. For example, Santa Clara County guidance states that businesses should require that employees do not eat their food in the cafeteria.
  • Maintain safety protocols on deliveries.
    • Trucking and shipping services are still permitted to operate. Businesses receiving packages should still adhere to social-distancing guidelines (staying six feet apart, adequately washing/sanitizing hands, cleaning high-touch surfaces).
    • Containers and surfaces used in the delivery area need to be wiped down regularly.
    • Check for updated county guidance on delivery parameters. For example, San Mateo County recently clarified that delivery must be conducted without person-to-person contact (i.e., at a distance of six feet or more).
    • Ensure food deliveries reflect social distancing and hygiene protocols.
      • Businesses that deliver food should require that employees wipe down with disinfectant all containers and surfaces used in the delivery between each delivery.
      • Payment for delivery should be done virtually (e.g., through a credit or debit card or a payment app) to the greatest extent possible. If the use of cash is unavoidable, the exchange of cash should be done without breaching a six-foot distance between individuals.
  • Take proactive infection prevention measures.
    • Implement a disinfectant protocol.
      • Promote frequent and thorough handwashing, including by providing workers, customers and worksite visitors with a place to wash their hands. If soap and running water are not immediately available, provide alcohol-based hand rubs containing at least 60% alcohol.
    • Discourage workers from using other workers’ phones, desks, offices or other work tools and equipment, when possible.
    • Based on OSHA’s guidance, we recommend that employers perform routine environmental cleaning.
      • While this will largely depend on the type of industry, businesses should routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops and doorknobs.
      • Employers who use biometric tools or other high-touch tools that require contact, such as a fingerprint scanner, should eliminate the need for these tools.
      • Please see the below contingency plan section if an employee or other person with suspected or confirmed COVID-19 has visited your business.

Create a Contingency Plan

  • If you have an employee who has tested positive:
    • Contact CDC and the local health department immediately.
    • Follow CDC recommendations for most non-healthcare businesses that have suspected or confirmed COVID-19 cases:
      • Isolation 
        • Designated areas with closable doors may serve as isolation rooms until potentially sick people can be removed from the worksite.
        • Develop policies and procedures for immediately isolating people who have symptoms of COVID-19, and train workers to implement them
      • Timing
        • Close off areas used by the ill individuals and wait as long as practical before beginning cleaning and disinfecting to minimize potential for exposure to respiratory droplets. Open outside doors and windows to increase air circulation in the area. If possible, wait up to 24 hours before cleaning and disinfecting.
      • Scope
        • Cleaning staff should clean and disinfect all areas (e.g., offices, bathrooms and common areas) used by the ill individuals, focusing especially on frequently touched surfaces.
      • Cleaning
        • If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection.
        • For disinfection, diluted household bleach solutions, alcohol solutions with at least 70% alcohol, and most common EPA-registered household disinfectants should be effective. CDC provides guidance on proper disinfection—including a recipe for mixing a bleach solution—and a list of EPA-approved disinfectants.
    • Personal Protective Equipment (PPE) and Hand Hygiene
      • Cleaning staff should wear disposable gloves and gowns for all tasks in the cleaning process, including handling trash.
        • Gloves and gowns should be compatible with the disinfectant products being used.
        • Additional PPE might be required based on the cleaning/disinfectant products being used and whether there is a risk of splash.
        • Gloves and gowns should be removed carefully to avoid contamination of the wearer and the surrounding area. Be sure to clean hands after removing gloves.
        • Gloves should be removed after cleaning an area occupied by ill individuals. Clean hands immediately after gloves are removed.
        • Cleaning staff should immediately report breaches in PPE (e.g., tear in gloves) or any potential exposures to their supervisor.
      • Cleaning staff and others should clean hands often, including immediately after removing gloves and after contact with an ill person, by washing hands with soap and water for 20 seconds.
      • Determine what to do with the waste created while decontaminating.
        • For example, in San Mateo County, businesses must decide whether the solid waste (wipes, protective clothing, etc.) is contaminated enough to consider it infectious. If so, manage it as biohazardous waste and place it with your normal biohazardous waste containers. Contact a registered medical waste transporter if you need help with having it packaged and shipped offsite, as required.
  • Determine how you will operate if absenteeism spikes from increases in sick employees, those who stay home to care for sick family members, and those who must stay home to watch their children if dismissed from childcare programs and K-12 schools. CDC recommends employers take the following steps:
    • Plan to monitor and respond to absenteeism at the workplace;
    • Implement plans to continue your essential business functions in case you experience higher-than-usual absenteeism;
    • Prepare to institute flexible workplace and leave policies;
    • Cross-train employees to perform essential functions so the workplace can operate even if key employees are absent; and
    • Identify backup personnel, including backup managers.
  • Assess your essential functions and the reliance that others and the community have on your services or products. CDC recommends employers take the following steps:
    • Be prepared to change your business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize existing customers or temporarily suspend some of your operations if needed).
    • Identify alternate supply chains for critical goods and services. Some good and services may be in higher demand or unavailable.
    • Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.

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