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Dec 24, 2020

Heading off COVID-19 as a legal liability in California and future states

In 2021, the legal implications of COVID-19 in the workplace could well be as formidable as the disease itself. To protect employees, California has established stricter safety and monitoring requirements – with other states beginning to follow their lead. Employers already struggling to resume normal operations could face steep fines, shutdowns and costly lawsuits if they fail to comply.

In our recent webinar, legal expert Betsy Johnson, who is with California law firm Ogletree, Deakins, Nash, Smoak & Stewart, discussed how employers can protect their financial health while ensuring employee safety. She covered how to create and implement a return-to-work coronavirus compliance program and spot “red flag” compliance issues, emphasizing the importance of qualified resources and technology adoption to manage compliance programs.

Download the 4medica webinar, “What’s in Your COVID-19 Compliance Toolbox?” HERE.

“I can say that 2020 has been a year like no other from an employment law standpoint,” Johnson remarked. “One of the things that employers are going to struggle with, given the new rules, is how to gather, maintain and report, if necessary, the data that they are now required to collect under the new laws.” For those who are attempting to do so “on paper,” she cautioned, “this is really no longer sustainable.”

Laws and regulations

In the case of California, Johnson noted that “everything seems to be distilling around the CAL/OSHA emergency temporary standards (ETS), which are in effect now, and AB 685, which becomes law on January 1, 2021.” CAL/OSHA focuses primarily on the safety aspects, requiring a prevention plan, exclusions and return-to-work protocols, no-cost testing and paid time off. Both laws require notification to employees and all third parties within one business day of a COVID-19 case in the workplace. AB 685 further requires a one-day notice when a “qualifying individual” may have exposed the worksite to COVID-19 and, in the case of outbreaks and major outbreaks, notice must be provided to the local health department within 48 hours.

Johnson said employers should also anticipate the requirement for more rigorous employee training. “Even if you’ve been managing training for employees on COVID-19, it may not be enough,” she explained. “This new standard requires more rigorous training, and you’ll need to expand what you are doing in the near future.”

She added that free employee testing for COVID-19 will continue, with employers obligated to cover testing costs or access insurance co-pays or both.

Workplace exclusions

When it comes to COVID-19 workplace exclusions, Johnson explained that the two biggest factors to consider are: 1) When do I have to exclude an employee? and 2) When can I bring them back? It goes without saying that any employee testing positive for COVID-19 must be excluded from the workplace until they are no longer a risk, however exclusion also applies to “Close Contact” exposures.

Close Contact includes employees who were within six 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.

“This is non-negotiable,” Johnson said. Positive and Close Contact cases must be excluded from the workplace until their quarantine period is over no matter their criticality to the organization. Exclusions are a minimum of 10 days depending on exposure and symptoms. She emphasized the importance of maintaining compliance reports to verify that this requirement is met.

ohnson also stressed that “You cannot require employees to provide you with a negative test to return to work,” further underscoring the need for accurate reporting.

Disinfection and safety plan

In addition to exclusions, employers must also communicate their disinfection and safety plan following a COVID-19 exposure. “You should already be doing more heightened cleaning, however, if you have a COVID-19-positive case in the workplace, that person’s work area needs to be shut down and given a deep disinfectant cleaning. Adjacent common areas must also be deep cleaned,” she explained.

In addition to cleaning, infected employees must be notified of available benefits in a notice letter AND employers are legally obligated to provide all COVID-19 positive and Close Contact employees’ contact information to public health and participating unions.

Impact on privacy

“California has the strongest privacy protection laws of any state in the country,” Johnson said. “However, new COVID-19 reporting and recordkeeping requirements now take priority. There is a public safety reason why employers now have to disclose some employee data. Employers must balance public safety requirements with employee privacy.”

For Human Resources professionals, COVID-19 may also challenge Equal Employment Opportunity Commission (EEOC) requirements. “For instance, you can advise people on travel, but you can’t restrict travel as a condition of employment,” she explained. “You have to be very mindful about how the new protocols overlap with discrimination and retaliation laws.”

Reduce potential liability

To circumvent legal liability, Johnson stressed the importance of putting the right resources in place to manage compliance. “With so many moving parts required, employers need to designate a person (or team) to be their COVID-19 compliance guru. This person (or team) should be responsible for ensuring all of the right protocols are in place to track cases, exposures, tests and notices. They should also be able to access and filter information quickly to report, if necessary, to public health.”

Automate to ensure accurate reporting

Deploying a compliance management solution can substantially improve monitoring and reporting accuracy to decrease the threat of legal liability, while also increasing data collection and resource efficiency. Reminding employees to fill out their wellness questionnaires is more difficult and time-consuming, for instance, when you are using a paper-based system.

Integrating with laboratory partners provides quick access to testing sites, often providing same-day employee testing results so employers can quickly take action if there is a problem. Many organizations are also linking to physician platforms to help monitor cases through telehealth and develop customized testing for their organization.

Based on guidelines developed by the Centers for Disease Control and Prevention (CDC), the 4medica® Wellness App enables employees and employers to easily access, record and report on COVID-19 information. Employees are given access to a mobile and web-based COVID-19 wellness questionnaire app that calculates a personal risk score to help employers determine if they are safe to return to work. In the app, users can:

  • View test results
  • Record daily COVID-19 questionnaire results
  • Input daily temperatures
  • View COVID-19 risk scores

Employers can access the 4employer™ side of the application to monitor their overall employee population and immediately identify those deemed high risk for infection. This analytics capability enables employers to generate reports that can be exported to meet reporting and compliance requirements. Employers can also monitor trends at a glance without having to guess or work off of a paper report that may not contain the latest information.

Ready to explore the 4medica COVID-19 Employee Wellness management SolutionTM for organizations? Visit our website to learn more, schedule a demo or call us today at 424.289.2500.