As previously reported, effective Tuesday, March 17, 2020, San Francisco, Alameda, San Mateo, Santa Clara, Santa Cruz, Marin, and Contra Costa counties imposed Shelter-In-Place Orders (“SF Bay Area Orders”).  The SF Bay Area Orders require all individuals to shelter in place in their residences and businesses to cease all activities at facilities located within the listed counties with certain exceptions for: (1) “Essential Businesses” (as defined by the Orders); and (2) “Minimum Basic Operations” for businesses that do not qualify as “Essential Businesses.” The Shelter-In-Place Orders currently remain in effect through April 7. Although each of the six Bay Area counties, plus Santa Cruz, issued a separate Order, the substantive terms of the SF Bay Area Orders are the same.

Again, the intent of the Orders is to ensure the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, and to slow the spread of Coronavirus (also known as COVID-19) to the maximum extent possible. To that end, we have seen local sheriff’s departments implementing the Orders against companies that do not fall squarely under an express exemption.

As of Wednesday, March 18, 2020, more California counties have issued Orders, bringing the total count to 11 out of 58 California counties.  The below includes an update on the SF Bay Area Orders and the latest counties to issue Orders.

What Businesses are Covered by the SF Bay Area Orders?
 
All businesses with a facility in San Francisco, Alameda, San Mateo, Santa Clara, Marin, and Contra Costa counties, except for “Essential Businesses,” are covered by the SF Bay Area Orders. The Orders list 21 categories of Essential Businesses, ranging from healthcare operations and hardware stores to businesses that ship or deliver goods directly to residences. Employees of Essential Businesses may perform travel to/from and related to the Essential Business. The full list of Essential Businesses may be found in each of the Orders, here:

What are the Guidelines for Essential Businesses?

The Orders strongly encourage Essential Businesses to remain open. To the greatest extent possible, Essential Businesses shall comply with the “Social Distancing Requirements.” Social Distancing Requirements include maintaining at least six-foot social distancing from other individuals, washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer, covering coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands.

What if My Business Is Not On the List of “Essential” Businesses?

Generally, businesses that do not provide “essential” services must send workers home. All travel other than “essential travel” is prohibited. Businesses may continue operations that consist exclusively of employees or contractors performing activities at their own residences (i.e., working from home).  The Orders do, however, contain a limited exception for “Minimum Basic Operations.” Minimum Basic Operations includes the following, provided that employees comply with Social Distancing Requirements, to the extent possible, while carrying out such operations:

  • The minimum necessary activities to maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions.
  • The minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.

Are Impacted Employees Eligible For Unemployment Insurance?

Individuals who are laid off or subject to reduced hours due to Coronavirus restrictions may apply for unemployment benefits through the California Employment Development Department. Individuals do not need to be sick to apply. California has waived the normal one-week waiting period, so an employee may collect unemployment insurance benefits for the first week he or she is out of work.

Is there a penalty for noncompliance?

Per the orders, violation of or failure to comply is a misdemeanor punishable by fine, imprisonment or both. At the moment, the country sheriff’s departments and county chiefs of police are responsible for enforcement.  For instance the Alameda County Sheriff notified a manufacturing employer, via Twitter, that it was not an essential business as defined in the Alameda County Health Order.  The Alameda County Sheriff notified the business that it was limited to minimum basic operations per the Order.

What Are Other Counties Doing?

Following the initial SF Bay Area Orders, the counties of Santa Cruz, Monterey, San Benito, Sonoma, and Sacramento have issued similar orders or directives from county health officials.  The subsequent orders and directives contain different language, but are also designed to restrict movement to essential services and businesses, such as healthcare operations, grocery stores, and gas stations.

Orange County has issued a public health order that closes bars and other establishments that serve alcohol but not food, and restricts restaurants to pick-up, delivery, and drive thru services. This is not a Shelter in Place Order.

At this time, Napa and Solano counties have not issued similar mandates.

How Do I Get More Information?

This is an evolving area and changes on a daily basis.  Please contact your Baker & McKenzie employment lawyer if you need assistance navigating these issues, or visit our Coronavirus Resource Center for more information. You can also click here for our most recent client alert on employee pay during COVID-19 leaves, furloughs, and closures.

Last week, in Kim v. Reins International California, Inc., No. S246911, after more than two years on review and extensive briefing by amicus curiae, the California Supreme Court unanimously resolved an issue of first impression concerning the Private Attorneys General Act (PAGA): whether settlement of individual Labor Code claims extinguishes PAGA standing.

California’s Labor Code contains a number of provisions designed to protect the health, safety, and compensation of workers. Among those laws, PAGA provides a mechanism for employees to enforce the Labor Code as the state’s designated proxy. In particular, PAGA authorizes “aggrieved employees” to pursue civil penalties on behalf of the state. Those penalties differ from statutory damages or other penalties an employee may recover individually for alleged Labor Code violations because relief under PAGA is intended to benefit the general public, not the party bringing the action.

Continue Reading Employee Remains “Aggrieved” Under PAGA Even After Settling Individual Claims

Effective Tuesday, March 17, 2020, San Francisco, Alameda, San Mateo, Santa Clara, Santa Cruz, Marin, and Contra Costa counties imposed Shelter-In-Place Orders. These Orders require all individuals ordered to shelter in place in their residences and for businesses to cease all activities at facilities located within the listed counties and with certain exceptions for: (1) “Essential Businesses” (as defined by the Orders); and (2) “Minimum Basic Operations” for businesses that do not qualify as “Essential Businesses.” The Shelter-In-Place Orders currently remain in effect through April 7. At this time, Napa, Solano, and Sonoma counties have not issued similar mandates.

The intent of the Orders is to ensure the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, and to slow the spread of Coronavirus (also known as COVID-19) to the maximum extent possible. Although each of the seven Bay Area counties issued a separate Order, the substantive terms of the Orders are the same.

What Businesses are Covered by the Orders?

All businesses with a facility in the above-listed counties, except for “Essential Businesses,” are covered by the Orders. The Orders list 21 categories of Essential Businesses, ranging from healthcare operations and hardware stores to businesses that ship or deliver goods directly to residences. Employees of Essential Businesses may perform travel to/from and related to the Essential Business. The full list of Essential Businesses may be found here:

Continue Reading Shelter-In-Place Orders Take Effect In The San Francisco Bay Area

Current and Anticipated Requirements

The stark reality of government quarantines, mass-gathering bans, school closures, public health emergencies, and travel restrictions is impacting the American workplace and workforce in truly unprecedented ways. Every day, US employers institute facility closures, remote-working, furloughs and, in some cases, layoffs in response to the economic and health impacts of the COVID-19 pandemic. Employers are no longer asking whether they can check the temperatures of their employees, but instead are hyper-focused on continuing critical business operations while helping employees mitigate the financial burdens of the current crisis.

Click here to review our latest FAQ which addresses these challenging employment and humanitarian concerns.

Encouraging employees to wash their hands is no longer enough!

As anticipated in our last alert, the World Health Organization (WHO) has now declared the COVID-19 virus a pandemic, changing the legal landscape for employers in terms of how they navigate the impact of the outbreak on their workforce. As such, we are circulating an updated FAQ with additional tips for US employers. As previously explained, these FAQs are based on experience with prior pandemics, and the ADA and EEOC guidance, which are the main “drivers” for managing employees. Of course, bear in mind that there are many other considerations that can come into play, such as OSHA and state equivalent health & safety laws, FMLA and state equivalent leave laws, HIPPA and state privacy laws, state and federal wage and hour laws, and the NLRA, all of which will need to be “ticked through” depending on the facts.

Q. Does the WHO’s declaration of a “global pandemic” mean that that US employers may rely on the “direct threat” ADA exception to conduct employee medical exams (e.g., temperature checks) and make disability-related inquiries (e.g., asking employees if they have a weakened immune system that might make them more susceptible to severe illness if exposed to COVID-19)?

A. Probably. A pandemic declaration describes the scope of the disease’s spread, but not the severity of the disease, so a pandemic declaration by itself is not enough. But given the CDC’s current assessment of the severity of COVID-19, the WHO’s pandemic declaration, and local public health agency proclamations about the disease, many U.S. employers should now be able to take steps to protect their workforces from COVID-19. The 2009 EEOC guidance outlines the relevant ADA standard:

Whether pandemic influenza rises to the level of a direct threat depends on the severity of the illness. If the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination. During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

It is now relatively clear that COVID-19 will be deemed severe in comparison to seasonal influenza or the 2009 H1N1 influenza. The CDC recently declared:

Outbreaks of novel virus infections among people are always of public health concern. The risk to the general public from these outbreaks depends on characteristics of the virus, including how well it spreads between people; the severity of resulting illness; and the medical or other measures available to control the impact of the virus (for example, vaccines or medications that can treat the illness). That this disease has caused severe illness, including illness resulting in death is concerning, especially since it has also shown sustained person-to-person spread in several places. These factors meet two of the criteria of a pandemic. As community spread is detected in more and more countries, the world moves closer toward meeting the third criteria, worldwide spread of the new virus. It is important to note that current circumstances suggest it is likely that this virus will cause a pandemic. This is a rapidly evolving situation and CDC’s risk assessment will be updated as needed.

The CDC also notes that there is no current treatment for COVID-19, that the International Health Regulations Emergency Committee of the World Health Organization declared the outbreak a “public health emergency of international concern” and that, on January 31, 2020, Health and Human Services Secretary Alex M. Azar II declared a public health emergency (PHE) for the United States to aid the nation’s healthcare community in responding to COVID-19. Many states have now declared local health emergencies, and cases of community spread are being commonly reported throughout the US. With close to 1,200 confirmed cases in 41 different states and the District of Columbia, US employers likely have the “objective evidence” necessary to justify disability-related inquiries or medical examinations.

Q: Can I send employees home if they display influenza-like symptoms during a pandemic?

A: Yes. The CDC and WHO have stated that employees who become ill with symptoms of influenza-like illness at work during the COVID-19 epidemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza. You can also send an employee home if the illness is serious enough to pose a direct threat (as defined under the ADA) to the employee or others (see above for an analysis of the current “direct threat” level). But if your workforce is unionized, make sure you consider any CBA-related obligations, such as guaranteed workweek provisions or shift change notice requirements. It is also important to not overreact; train your supervisors on the symptoms to watch for and when to send an employee home.

To continue reading our Q&A, click HERE.

Employers and their workforce are waking up to news this morning of further US travel restrictions given the COVID-19 pandemic. This time, the restrictions affect most travelers from the European Union (EU). The following are highlights of what you need to know today:

Foreign nationals who have visited the Schengen Area in the past 14 days will not be permitted to enter the United States under Presidential Proclamation.

Similar to recent presidential proclamations that restrict travelers who have visited China or Iran, the Presidential Proclamation that President Trump signed yesterday suspends the entry of most foreign nationals who have been in the Schengen Area at any point during the 14 days prior to their scheduled arrival to the United States. The countries in the Schengen Area are Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland. The proclamation is effective at 11:59 p.m. Eastern Daylight Time on March 13, 2020. The proclamation does not apply to persons aboard a flight scheduled to arrive in the United States that departed prior to 11:59 p.m. Eastern Daylight Time on March 13, 2020.

Click here to obtain additional information regarding restrictions, enhanced screening procedures at select airports, and steps employers should take.

With thanks to our Global Immigration and Mobility team for this alert.

To review the new and expanded version of the Coronavirus Quick Guide for Employers click here.

This guide covers 19 jurisdictions across Europe, Middle East and Africa and covers the latest country updates from the last couple of days, including employer obligations following school closures around the region.

The 2020 presidential race is well underway in the U.S. Labor policy has been and will continue to be a key talking point for Democratic candidates and President Donald Trump moving into the general election.

In part one of this two-part article, we examine the key labor policy proposals advanced by the leading Democratic contenders of the 2020 race — Sen. Bernie Sanders, I-Vt., and former Vice President Joe Biden.

In part two, we will examine the policy proposals of any remaining Democratic nominees, after Super Tuesday, as well as President Donald Trump.

Click here to continue reading the key labor policies and takeaways. Stay tuned for Part 2!

This article was originally published in Law360.

When encouraging employees to wash their hands is not enough!

As the COVID-19 virus spreads rapidly throughout the world, and the possibility of a pandemic declaration inches closer each day, much of the advice to employers so far has focused on generic “good hygiene” recommendations from health departments.This advice is of limited utility for employers who have already faced or will soon confront coronavirus cases in their workforce. Companies and government agencies are scrambling to keep up, and difficult but nuanced decisions must be made now. “Wash your hands” simply won’t cut it when you have a confirmed COVID-19 case in your midst.

Baker McKenzie’s COVID-19 Rapid Response Team takes the opposite approach – providing practical, jurisdiction-specific guidance that employers can use to deal with their most pressing COVID-19 issues. This client alert supplements our extensive guidance in our Coronavirus Resource Center, by providing US employers with specific responses to common questions about the virus.

This alert is based on lessons learned in past pandemics. After the H1N1 outbreak in 2009 rose to the level of a pandemic, the EEOC issued an employer resource titled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” We have updated the EEOC’s 2009 guidance to provide employers with answers on what they can and cannot do in addressing the COVID-19 epidemic, in the form of a FAQ and examples.

Click here to continue reading this informative Alert.

As the 2019 Novel Coronavirus (COVID-19) spreads into the broader economy, human resource professionals are finding that grappling with the consequences are more complicated in union-represented workforces. In a union workforce, the employer must determine what it has already agreed it will do, the extent of its freedom to address the scenarios created by COVID-19, and the legal framework within which it must act. Below we offer several considerations for employers to adopt.

First, examine the collective bargaining agreement. This will allow you to determine the extent of the company’s freedom to act independently and expeditiously. The place to start is to determine management’s right to schedule work, to idle the plant, to send workers home and to lay-off employees. Determine the restrictions, if any, in these rights, such as call-in pay or weekly guarantees.

Continue Reading Managing COVID-19 In A Union Workforce In The US