May 11, 2020 New Workplace Rules for San Diego County and New Guidance from the EEOC

San Diego County Issues an Updated Public Health Order and the Equal Employment Opportunity Commission Issues Revised Accommodation Guidance

On May 7, 2020, San Diego County issued a revised public health order regarding the COVID-19 pandemic. The same day, the Equal Employment Opportunity Commission (“EEOC”) issued revised guidance for employers regarding accommodating workers with medical conditions during the pandemic. This E-Update explains what employers need to know about these two developments.

San Diego County’s May 7, 2020 Public Health Order

On May 4, 2020, Governor Newsom ordered that certain non-essential California businesses may reopen beginning May 8, 2020, provided they follow specific guidelines. On May 7, 2020, San Diego County issued a revised Public Health Order that imposes specific requirements on reopening (and essential) businesses effective May 8, 2020 (the “May 7 Order”). (The County subsequently updated the May 7 Order in ways not relevant to this E-Update. The current public health order is dated May 10, 2020.)

Face Coverings. San Diego County had previously mandated face coverings for individuals who were within six feet of another person who was not a member of their household. The May 7 Order provides that employers must require their employees to wear face coverings at the workplace if they are within six feet of another employee or a member of the public. Employees with a medical or mental condition or developmental disability that prevents the wearing of a face covering are exempt from this requirement.

Temperature Screening. The May 7 Order requires employers to conduct a temperature screening of all employees before permitting them to enter the workplace, and to prohibit any employee with a temperature of 100 degrees or more from entering the workplace. When performing temperature screenings, employers should consider implementing protocols to ensure privacy and safety, such as privacy screens, appropriate personal protective equipment for the individual administering the screening, and social distancing for employees waiting in line.

If an employer does not have a thermometer available, the employer can screen employees based on whether they are exhibiting COVID-19 symptoms before they enter the workplace. The May 7 Order identifies the following COVID-19 symptoms that employers may use to screen employees if a thermometer is unavailable: cough, shortness of breath or trouble breathing or at least two of the following: fever, chills, repeated shaking with chills, muscle pain, headache, sore throat or new loss of taste or smell.

Safe Reopening Plan. The May 7 Order also requires any “reopened business” to prepare and post a Safe Reopening Plan. The Safe Reopening Plan requires businesses to confirm they are complying with various signage, employee safety, customer safety, and social distancing guidelines. The form is available here. The May 7 Order defines a reopened business as a business that is not an essential business, but which is permitted to reopen under California’s “Resilience Roadmap.”

The EEOC’s Revised Accommodation Guidance

The EEOC issued revised guidance on May 7, 2020 regarding an employer’s obligation to accommodate workers at higher risk for a severe illness from COVID-19.  The EEOC had issued guidance on this topic earlier in the week, but quickly withdrew it, citing concerns about potential misinterpretation of the guidance.

The EEOC’s revised guidance makes clear that employers may only exclude an employee from the workplace if the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced by reasonable accommodation. The EEOC stated the “direct threat requirement is a high standard,” requiring an employer to show the individual has a disability that poses a “significant risk of substantial harm” to the individual’s own health.  Such an assessment cannot be based solely on the employee’s health condition being on the CDC’s list of conditions creating a higher risk of serious illness from COVID-19. Instead, employers must perform an “individualized assessment” about the specific employee’s disability, which should include assessment of:

  • the duration of the risk;
  • the nature and severity of the potential harm;
  • the likelihood that the potential harm will occur;
  • the imminence of the potential harm;
  • the severity of the pandemic in a particular area;
  • the employee’s own health (for example, is the employee’s disability well-controlled);
  • the employee’s particular job duties; and
  • whether the individual would be exposed to the virus at the worksite.

The EEOC further clarified that even if the employer determines the employee’s disability poses a direct threat to his or her health, the employer cannot exclude the employee from the workplace unless the employer cannot accommodate the risk without undue hardship. If no reasonable accommodation would permit the employee to safely return to the workplace, the employer must consider other accommodations such as telework, leave, or reassignment (including to a position that permits telework). 

An employer may only exclude an employee if the employer goes through all these steps and concludes the employee’s condition poses a “significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.”  

California’s Fair Employment and Housing Act (“FEHA”) requires a very similar analysis. Under the FEHA, employers may only exclude an employee to protect their own health or safety if, after engaging in the interactive process, there is no reasonable accommodation that would allow the employee to perform the essential functions of their position without endangering their health or safety because the job imposes an “imminent and substantial degree of risk” to the employee.

Frequently Asked Questions

1. Are face masks required at workplaces outside San Diego County?

California recommends, but does not require, face coverings if employees are near other individuals. For example, California’s COVID-19 guidance for the office workspaces provides that “Face coverings are strongly recommended when employees are in the vicinity of others.” Other cities and counties in California may have their own requirements for wearing face coverings, including at work.

2.   What medical conditions are considered high risk for serious illness from COVID-19?

The Centers for Disease Control and Prevention has identified the following health conditions as creating a high risk for serious illness from COVID-19:

  • People with chronic lung disease or moderate to severe asthma;
  • People who have serious heart conditions;
  • People who are immunocompromised, including but not limited to from cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, or prolonged use of corticosteroids or other immune weakening medications;
  • People with severe obesity;
  • People with diabetes;
  • People with chronic kidney disease undergoing dialysis; and
  • People with liver disease.
  • Note that the CDC also identified persons 65 and older as a high risk group.

3.   What potential accommodation may eliminate a direct threat to an employee’s own health from COVID-19? 

The EEOC identified a number of accommodations that may eliminate the direct threat to an employee’s own health from COVID-19. The EEOC’s non-exhaustive list of potential accommodations includes:

    • Additional or enhanced protective gowns, masks, gloves, or other gear;
    • Additional or enhanced protective measures, such as erecting a barrier or increasing space to provide separation between the employee and coworkers and/or the public;
    • Elimination or substitution of “marginal” job functions;
    • Temporary modification of work schedules to decrease contact with coworkers and/or the public; and
    • Moving the location where the employee performs their work to enhance social distancing.

What This Means

Beginning May 8, 2020, employers must require employees to wear face masks if they will be within six feet of another employee or member of the public. Employers must also conduct a temperature screening of all employees before permitting them to enter the workplace, and prohibit any employee with a temperature of 100 degrees or more from entering the workplace.

If an employee has a health condition placing them at risk for serious illness from COVID-19, employers must carefully consider the employee’s specific condition and work environment to determine whether the employee’s disability creates a significant and imminent risk of substantial harm to his or her own health. Employers must also consider whether a reasonable accommodation, including telework, leave, or reassignment, can eliminate or reduce that risk to acceptable levels.

Paul Batcher   Fred Plevin

For further information, questions, or assistance regarding paid sick leave benefits, please contact us. PPSC has a dedicated COVID-19 response team and is committed to assisting our valued clients through these challenging and fast-changing times.