by Alexandra P. Saddik and Jonathan R. Babione
Federal, state, and county officials have been publishing general guidance for businesses reopening in recent weeks. Here is a summary of the movement occurring at each level:
Equal Employment Opportunity Commission (EEOC) Guidance: Despite the fact that people age 65 or older have been classified as an at-risk age group for contracting COVID-19, the EEOC clearly stated in recent guidance that employers are not allowed to exclude workers over 65 from the workplace. To do so would violate the Age Discrimination in Employment Act (ADEA). However, the ADEA does not prohibit employers from providing flexibility to workers age 65 and over as employees return to work. Furthermore, under the American with Disabilities Act (ADA), workers who are 65 or older and have a medical condition—which is considered a disability—may request a reasonable accommodation for their disability.
Occupational Safety and Health Administration (OSHA) Guidance: OSHA recently released guidance recommending that businesses take a three-phased approach to reopening worksites. The first phase is to predominately rely on remote work where feasible. If employees do need to return to the workplace, the employer should limit the number of people present on site to better ensure social distancing. The second phase relaxes these restrictions and allows non-essential business travel to resume. The final phase allows unrestricted staffing at worksites.
OSHA encourages employers to consider the following when reopening: conducting a hazard assessment; encouraging proper hygiene and sanitization; social distancing; identifying and isolating sick employees; procedures for employees to return to work after illness or exposure; controls to reduce workplace hazards; workplace flexibility; training; and anti-retaliation practices. OSHA also recommends a health screening process for workers entering the worksite; this includes a temperature/symptom check or requiring employees to self-screen using the Center for Disease Control (CDC) guidelines. OSHA’s return to work guidance can be found at: https://www.osha.gov/Publications/OSHA4045.pdf
On June 18, 2020, California instituted a statewide face covering requirement. Californians are now required to wear face coverings outside the home unless they are: two years or younger; have a condition that prevents wearing a face covering; rely on the ability to see the mouth for communication; are obtaining a service that requires temporary removal of the face covering; seated at a restaurant and are able to maintain physical distancing with people who are not members of the household; incarcerated; engaged in outdoor work or recreation; or in a position where wearing a face covering would create a work-related risk. The face covering must cover the nose and mouth. Details about California’s face covering requirements can be found at https://covid19.ca.gov/industry-guidance/.
Additionally, as of June 19, 2020, personal care services such as nail salons tattoo parlors, and body waxing were allowed to open in counties that met the state attestation requirements. This guidance can be found at https://covid19.ca.gov/roadmap-counties/.
The state has also started to maintain a watchlist of counties that have concerning trends that imply an outbreak of COVID-19. Counties that have been on the watchlist for more than 3 days will be required to shut down indoor dining, movie theaters, wineries and tasing rooms, family entertainment centers, zoos and museums, and cardrooms. Additionally, the state has created inter-departmental task forces to ensure compliance with the stay at home order.
Alameda County: Effective June 19, 2020, Alameda County and Berkeley allowed all retail, outdoor dining, outdoor museums, religious and cultural ceremonies, First Amendment events, outdoor fitness classes, and summer schools to resume. Alameda County has also provided guidance for restaurants, retail and shopping, and places of worship. The revised health order, social distancing protocols, guidance, and reopening plan can all be found at http://www.acphd.org/2019-ncov/covid-recovery.aspx. Alameda County has no further plans to reopen at this time due to an increase in cases and hospitalizations.
Contra Costa County: Due to an increase in COVID-19 cases, and recommendations from California state officials, Contra Costa County is postponing its reopening timeline. Pursuant to the state’s order, Contra Costa County has also shut down indoor dining, movie theaters, wineries and tasing rooms, family entertainment centers, zoos and museums, and cardrooms. Contra Costa County also issued a statement regarding the lack of evidence of the efficacy of temperature checks; due to this lack of evidence, the county does not recommend relying on temperature screening as a safety precaution.
Marin County: Marin County filed for attestation with the state, meaning that it can proceed further in the reopening process. Effective June 29, 2020, campgrounds and RV parks, driving schools/instruction, hair salons and barber shops, outdoor vehicle-based gatherings, and picnic and barbeque areas will be allowed to reopen. Though indoor dining was opened briefly, Marin County reversed its decision due to an increase in cases in hospitalizations. Further information about Marin County’s reopening process can be found at https://coronavirus.marinhhs.org/stay-home-order-effect-marin-county.
San Francisco County: San Francisco County has also successfully filed for attestation with the state. Though San Francisco was planning to reopen hair salons, barbers, museums, zoos, tattoo parlors, massage establishments, nail salons and outdoor bars on June 29, 2020, it has temporarily halted all phases of the reopening process due to a new increase of cases.
San Mateo County: On June 17, 2020, San Mateo County announced that it had completed the attestation process and will realign the reopening process with the state. In doing so, San Mateo County rescinded its shelter-in-place order and indicated that the county will reopen pursuant to California’s timeline. Further information about this can be found at https://www.smchealth.org/health-officer-orders-and-statements and https://covid19.ca.gov/industry-guidance/.
Santa Clara County: On June 5, 2020, Santa Clara County allowed outdoor dining, all retail, manufacturing, warehousing and logistics, house cleaning and other no-contact in-home services, low contact/no contact services such as shoe repair, pet grooming and dog walking, all childcare, summer camps, and summer school, small outdoor ceremonies and religious gatherings, outdoor swimming pools, camping, and drive-in theaters and other car-based gatherings to open up.
Santa Clara County also issued a new order on July 2. Indoor businesses that require people to remove face coverings such as indoor dining and bars, indoor swimming pools, smoking lounges, saunas, steam rooms, and heated exercise studios are not allowed to reopen. Non-residential adult and elder day care facilities, amusement and theme parks, nightclubs, music and concert venues, indoor theaters, and indoor amusement centers and playgrounds are also not allowed to reopen under this new order. Professional sports stadiums may host training with proper social distancing and live sports with no spectators. All other businesses, including hair salons, nail salons, and gyms, are allowed to reopen provided that they follow county and state guidance for safe reopening. Santa Clara County successfully filed for attestation July 7, 2020; as such, the order is currently scheduled to take effect on July 13, 2020.
Further information can be found at https://www.sccgov.org/sites/covid19/Pages/order-health-officer-07-02-20.aspx.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.