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This is the Anderson Files on PodClips.
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The Anderson Files is a look at commerce, investment, economics and retirement issues that affect each and every one of you.
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Your host is Mike Anderson, Executive Vice President, Retirement Services and partner of Finestone Partners.
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Finestone Partners is an independent firm with securities offered through Four Point Capital.
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And now your host Mike Anderson. Welcome to today’s show.
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Our topic is returning to work in a COVID-19 world.
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Our guest is Los Angeles employment Attorney Debbie Birndorf.
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She’s been practicing law for more than 20 years, with 11 years at major law firms in both Chicago and Los Angeles.
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Her practice primarily focuses on representing employers in all aspects of employment law.
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She also provides preventative counseling and advice including drafts and reviews, employment contracts, severance agreements, employment handbooks and personnel policies.
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Debbie, welcome.
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Thank you so much for having me. Getting right into it, for employers bringing employees back into the workplace.
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How do you think they’re gonna do it? Well, this is definitely an unprecedented time.
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We’ve never seen anything like this and we certainly have never seen anything at this scale.
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So if there’s something at all to be said, it’s misery loves company, company, everybody is going through these same things.
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But the good news is that there has been a lot of guidance both by the CDC, by city officials in the city of Los Angeles, by county officials.
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The L A County Public Health Department has been issuing a lot of guidelines, some of which are even industry specific that give protocols and outlines as to what employers need to do, to prepare themselves to either reopen or expand the scope of their employment.
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In other words, going from a minimal or skeleton crew, crew to going back to a more complete or full-time crew.
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And so the first thing to do is that every employer, even before COVID, this is not a new requirement, but this is an expanded requirement,
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has to have what we call an illness prevention policy.
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Now, depending on the type of business you are in, they are, they can be very complicated to very simple.
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For example, if you’re working in an office environment, the the type of injuries you get in the office are really quite limited.
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Sometimes they’re carpal tunnel.
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If people are on the computer a lot, sometimes you have an occasional slip and fall.
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But really the injuries and the illnesses that happen in the workplace are limited to an extent, as opposed to those employees who work in a manufacturing or a plant environment.
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For those the risk of injury is much higher.
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So depending on the type of industry you are in, you’re gonna have a more complicated or less complicated illness prevention plan.
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So what the CDC in LA, in the state of California actually, has mandated is we’re gonna need all employers to take those illness prevention plans and they need to bump it up on steroids.
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There needs to be a whole new risk assessment as to and incorporating COVID related safety procedures.
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So everything the employer is going to do to prepare for employees coming back to work should be written down and should be incorporated into this illness prevention plan.
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And we’ll talk about, I’ll talk about that, or what it should be included in that in just a minute.
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But once that plan is put together what the employer also has to do it, it has to train its employees and it shouldn’t wait.
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Employers should not wait till the day that the employees come back to work.
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They should actually, employers should actually have specially scheduled training days prior to opening doors for business or having employees start for their actual work.
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Now that being said, this would be paid time and the employees need to be paid for this time and you need to be careful about those wage and hour issues.
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But training and illness prevention plans go hand in hand.
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So now what goes into those plans, what do the employers need to pay attention to? A lot of this stuff is not gonna be surprising.
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Social distancing.
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Everybody has heard, you know, that term, you know, a term that nobody necessarily heard or that was familiar with three months ago.
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Now everybody is terribly familiar with. Now Debbie, for even very small companies where they may be a deli or a small restaurant, a small service retail company does the measure the bar apply to them as well?
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This bar applies to everybody.
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Nobody escapes this.
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With the minor exception of right now, is health care workers because health care workers cannot tend to their patients being 6 ft away.
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They have to get up close and personal and they touch the patient.
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But right now it is that, that is as a guideline should be mandated even in small spaces and even with small employers.
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Now, there is the recognition that it is, it is virtually impossible at all times to conduct business with being 6 ft apart.
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If anybody’s gone to a grocery store in the last two months, when you go and check out, you’re gonna be less than 6 ft apart from that cashier.
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So, but really the idea is to minimize that time that the employee and the customer or even employees working together are less than 6 ft apart. If you have a situation where an employer is doing a best effort to comply with the protocol and they don’t quite make it.
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Are there any safe harbors that exist yet to, for the employer to be off the hook, or does it not, does not exist yet? And, and you know, that’s an interesting, interesting question because the penalties associated with these type of requirements have not really been sussed out, meaning that the county or the city has basically said we’re not going to police, I mean, you hear them talking about with face masks, the police department has said we’re not gonna police it even though it’s mandated, we’re not gonna write people up who are doing it.
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They, they’ve made a public announcement in that Orange County, same thing with the businesses.
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But here’s the catch – if an employee comes to work and everybody is not wearing a face mask or if people are too closely situated and that employee feels uncomfortable and that employee says, you know what, I don’t want to come to work because you are not providing me a safe work environment and the employer says, fine, don’t go to work.
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We’re not gonna pay you and by the way you’re terminated if you don’t show up for your shift, guess what? That employer is gonna get sued so quick, it’s gonna make your head spin and those are the type of lawsuits that are actually happening right now, where employees have gotten terminated for being afraid or complaining about employers not taking these steps and then getting fired as a result because they’re refusing to work.
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You’ve got a wrongful termination claim and, that’s, we don’t know how those are gonna turn out because they haven’t run its course and these are all brand new.
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But I gotta tell you, my gut tells me that a jury is going to be very sympathetic to an employee who felt uncomfortable coming to work because the employer wasn’t mandating or requiring or enforcing the employees, the other employees to wear masks.
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Which by the way, a lot of employers are not. I mean, in the grocery stores you see it, but in office environments, people are not wearing masks or they’re wearing masks maybe to get into the office and then once they’re in the office, everybody takes off the mask.
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Which by the way, people still walk to back to other offices, to common areas, to the restroom.
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And some people are very uncomfortable with the people, the fact that people aren’t being required and there isn’t any enforcement on site to wear the masks.
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So that’s, I think that’s how it’s gonna play out.
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You’re gonna see the lawsuits by the employees who are claiming that the employer did fail to provide a safe work environment, which is required by OSHA, which is the Occupational Safety and health Administration.
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Are the protocols for the entire state, or are they going to be varying from county to county? For example, is LA going to have a different set of protocols or slightly different than Orange County or San Diego or Ventura? A another great question because there is a lot of differences between the different counties.
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Everybody has taken into their own hands, what they want to require.
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The Inland Empire counties like San Bernardino and Riverside have been more lax.
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They’re not as populated as Los Angeles County or Orange County or San Diego County.
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So until recently, actually, Riverside County did not even require face masks in grocery stores or in public places.
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Now that changed, I think as of last week, they are now requiring it.
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But San Diego, on the other hand, is the other extreme, not only are face masks required, but temperatures are required, that employers are required to take the temperatures of employees before they’re allowed to work.
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So they’re going the other extreme.
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So if you as an employer have locations in different counties, you need to make sure that you are aware of what is required in that county in order to be compliant with this county.
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And make sure you’re doing everything that is required and also making sure you are not doing things that are prohibited.
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One of the interesting things that I’m getting a lot of questions about from employers is, in addition to taking their temperature, which, by the way, unheard of six months ago, it was unheard of that
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an employer could take an employee’s temperature.
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Now, about four months ago or three months ago, it became standard that people are taking temperatures in public places, people are taking them at places of employment.
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I had an employee, a client of mine asked me about three months ago, maybe two months ago now, no, three months ago, March,
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whether or not they could ever test their employees for the Coronavirus.
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And I said, I can’t imagine a world and whether where employers are going to be allowed to, to test their employees because that is so invasive.
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I mean, going to work requires you to give blood, literally.
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Well, guess what, about three weeks ago, the government agencies that oversee discrimination and privacy laws basically gave permission to employers to conduct tests on employees before they’re allowed to work.
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The problem with this is, interestingly enough, that the tests have actually are, the technology is not keeping up with the laws.
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It’s usually the other way around that the laws don’t keep up with the technology.
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Listening to the Anderson files.
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I’m your host, Mike Anderson, our guest today, Debbie Birndorf, the, the world in which we are living right now has changed a little bit and that, we were, now, we’re living in a world where employers can actually require employees to give blood before they enter into the workplace, which is really just a startling difference compared to the world we lived in six months ago.
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And here’s the case where technology is actually not kept up with the laws, which is very different than how it was in the past where the laws are always kind of playing catch-up to technology.
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And here’s a case where I have employers who are actually dying to give the test, they want to give the test, they want to be able to say to their employees that everybody who comes in here is negative for the COVID virus.
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The problem is, no test exists,
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no such test exists that an employer can use in that way.
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And that is frustrating employers, the the test, you can draw the blood at the work site, but the tests then need to be sent to a lab to be tested.
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And then you know, the time lag between the tests and, and when they get the results is often a week and a lot of things happen in a week including possible infection.
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So by the time you get the results, they’re not terribly accurate.
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And so that, that is one of the issues with the testing, but it’s a really interesting from from a sociological change.
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And from a legal standpoint as to what employers are allowed to do.
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Debbie, do you think employers will go through and hire outside services to perform some of these protocol steps where their existing staff may, may not be able to, to perform those, those protocols? Certainly, with regard to some of them.
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With regard to the sanitation, there is this has been a booming time for sanitation companies, our janitorial supplies companies that are, that have all sorts of disinfectants and things like that.
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I actually have a family member who works in that industry and he says he can’t keep up with the demand, they just can’t keep up with it.
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So those, those type of businesses and those that come in and, and clean professional or commercial space, they are being inundated.
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And they don’t, they are hiring like crazy and they cannot keep up with the demand.
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But that’s like in an office environment where there’s like an office staff to come in and clean stores like Target or Walmart, they have contracted out to third parties and they have for years, but now they’re bumping that up because not only did it used to be that the janitorial people would come in in the middle of the night and clean the stores.
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Well, now, you know, now with the mandate, it’s every 30 minutes that things need to be wiped down.
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So, not only are companies paying a lot more to third party contractors to do it, but they’re also hiring a lot of people who their dedicated duties are going to be sanitizing and disinfecting.
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So that’s where we’re seeing really an explosion in demand from the employees.
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Other areas which people can do themselves, or they need to really figure out is that there ought to be a team at the employer which includes HR and facilities people to really rework the office space.
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You know, if people are in cubicles, or they are right next to each other, or less than 6 ft distancing, people need to spend the time and figure out how they’re going to reconfigure their workspace so that people are not on top of each other.
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Companies hire contractors who are coming in and putting up plastic barriers.
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Even in office spaces, and you’ve seen a lot of those in the grocery stores.
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Now, they have the plastic barriers between the cashier and the customer.
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Well, the CDC is recommending that those same type of barriers are being included in the office space.
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You know, we’ve gone from this era where there was such a push towards this open pit type concept where all these creative juices could flow and now everyone doesn’t, we don’t want your creative juices.
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We don’t want any juices, you know, we don’t want people talking, no spreading at all, because of what’s going on right now.
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So now we’re going to, you know, the spaces where everybody wants to be in their own office or people using, converting conference rooms into offices,
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so they can close the door.
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Changing the HVAC, those are things you need to outsource.
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The CDC has talked about the need to improve air filtration,
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instead of maybe just running the air, circulating the air that’s in the building, which I guess is very common.
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They now want more outside air being infiltrated into the building.
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So there’s a lot of HVAC work going on being air conditionings and air filtration systems.
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There is a UV lighting that is actually very popular right now in grocery stores because, and apparently has been for a while.
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You know, food and safety is not necessarily my area of expertise, but, you know, there’s been so much crossover given this pandemic that I’ve learned a lot, that’s very interesting that apparently UV, light kills bacteria and viruses.
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And so grocery stores use them often because they’ve got a lot of fresh food out there, especially if you’ve got a deli or meat or seafood department.
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And so those have been very popular popular in grocery stores always.
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But what people are doing is they’re now taking that UV lighting and they’re putting it in office buildings, so that they can control and have things that kill the viruses within the office buildings.
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So these are, you know, the lighting, the air quality, the physical distancing.
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And then of course, the hand washing, if people are working with public, employees should be given a break every 30 minutes so they can go wash their hands.
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And, when I say given, I mean, required, and that’s something that always kind of gets a little hinky because employers want to give employees the opportunity.
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But then employers employees get busy or they’re like, you know, I don’t need to wash my hands.
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I just washed my hands, people get lazy.
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But the reality is, to keep everybody safe.
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The employers, at least until we get into the establishment of the new norm, are gonna have to be a little bit of police officers to make sure that their employees who are interfacing with the public are washing their hands regularly.
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Also, to have hand sanitizer all located throughout the office is important.
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You know, now that’s become much easier to get, at least with hand sanitizer. For a while,
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It was impossible.
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But now that’s become plentiful again.
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So that’s good.
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But all of these things that we’re talking about going into that illness prevention plan that we’re talking about. With employees who are apprehensive about returning to work.
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Do you, as part of that, do you see telecommuting on the rise as part of that? Absolutely.
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I think telecommuting is gonna be the new norm and for a lot of companies, they are finding that it was a lot easier to switch to telecommuting given the advances in technology we’ve made in the last several years.
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It kind of went off without a hitch and I think this has been a little bit refreshing.
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I think for some employers, I mean, law firms in particular, law firms spend a bloody fortune on commercial rent and if they can forego commercial rent by having their employees telecommute, I think that’s a choice they’re gonna be making in the future.
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Employers just need to make sure they have a telecommuting policy that makes sure they’re reimbursing employees for business related expenses and that’s something they need to think about before they implement that company-wide.
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Well, with telecommuting most likely on the rise, employers for the employees that are on site, the employer won’t be as required to monitor how many times they wash their hands in a given day.
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That’s true.
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They, may be relieved of that responsibility.
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Well, that’s true.
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But that’s also an employee who’s not facing the public, hopefully if they’re working from home.
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So that, that leaves that requirement as well.
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But the flip side of that is when the employer isn’t watching, they’re not able to ensure the the quality or the quantity of the work.
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And that’s always a problem with telecommuting and sometimes people are not as productive.
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People really have to be disciplined to be able to telecommute and the employer needs to establish subjective, or objective, rather, criteria in which to evaluate the employees’ work performance.
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If they’re gonna telecommute, to ensure that the quality and the quantity of work product sustains. An employee is tested positive for COVID-19.
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What does the employer do? The employers needs to immediately send them home. The biggest issue here is how do you communicate with those people who have been close to that employee without disclosing the identity of the employee? Maintaining the identity of the sick employee is paramount.
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Employers will be sued if they disclose who’s had the COVID virus,
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because that is a violation of privacy.
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So, but on the other hand, the employer has an obligation to notify those people who may be at risk and to advise everybody to self-quarantine, the employee needs to go home who’s sick.
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Obviously, until they feel better, they shouldn’t be allowed to return to work until they’ve tested positive twice and 14 days after that, after they test positive twice.
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some people are saying 10 days, some people are different, have some different guidelines.
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But certainly the people who’ve been exposed should self-quarantine for at least 14 days, and by the way, they need to be paid during that time period because with the new supplemental paid sick leave laws, employers need to make sure they’re aware of those new laws and what they need to pay and when they need to pay when employees are out sick related to the COVID virus.
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Debbie, thanks so much for guesting today.
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We’ll see how this COVID-19 world unfolds for employers and employees.
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We hope to have you back in the future and we hope you have a great week.
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Absolutely.
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My pleasure.
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Thanks so much for having me. And I’d like to thank Darryl Wayne at the controls, and Mark Alyn producer. I’m Mike Anderson, your host and this is The Anderson Files.
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Keep calm and keep listening.
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You’ve been listening to The Anderson Files with Mike Anderson. Visit us at PodClips.io and check on the Financial box for more information on The Anderson Files.