IIPP-The Unknown Rule Punishing Los Angeles Employers Because of COVID-19
Los Angeles small businesses have many regulatory hurdles. Los Angeles employment laws tend to be more expansive than California’s. In light of COVID-19 and the “second wave” of cases, California agencies and Los Angeles local authorities are beginning to issue citations to small businesses that do not comply with safety measures.
In September 2020 California passed several employment laws that substantially impact Los Angeles small businesses. See my blog post here on the 6 newest laws employers need to know. This blog will discuss some of the employment laws that relate to safety in the workplace.
How does an employer establish an IIPP?
Every employer in California is required to have an effective Injury and Illness Prevention Program (“IIPP”). This is simply a written policy that would be in addition to other written policies or handbooks. This is required of every business, yet is hardly talked about. Luckily, California’s Occupational Safety and Health Administration (“Cal/OSHA”) has a free online tool to help employers create an IIPP. This tool should be used to create the framework of the IIPP and employers should expand upon it for the business’ needs.
According to Cal/OSHA there are 8 elements to an IIPP:
4. Hazard Assessment
5. Accident/Exposure Investigation
6. Hazard Correction
7. Training and Instruction
8. Record Keeping
An effective IIPP must:
Fully involve all employees, supervisors, and management.
Identify the specific workplace hazards employees are expose to.
Correct identified hazards in an appropriate and timely manner.
Provide effective training.
Employers who already have an IIPP must update their IIPP to account for COVID-19. Over the past several months various government agencies have published COVID-19 guidelines for employers. Employers and small businesses in Los Angeles should read the following guidelines, along with any other local, state or federal guidelines and incorporate them into an updated IIPP.
Some of the IIPP updates for COVID-19 may include:
Additional or different PPE.
Confidential employee reporting of COVID-19 symptoms or positive test result.
Quarantine measures required by local and state laws.
Social distancing in the workplace.
What is California’s new law AB 685?
California’s Assembly Bill 685 (“AB 685”) was signed into law in September 2020 and goes into effect January 1, 2021. AB 685 is a layered law about reporting COVID-19 to government agencies.
Expanded Cal/OSHA Authority
AB 685 gives Cal/OSHA the authority to issue (1) Orders Prohibiting Use in situations where COVID-19 is an imminent hazard in the workplace and (2) citations for serious violations of occupational health and safety requirements as it relates to COVID-19 without giving an employer a 15 day notice prior to issuing the citation. Not having an effective IIPP could be grounds for a citation.
Cal/OSHA is directed to start issuing citations to businesses at a greater volume than in the past. This is California’s attempt to “flatten the curve” but is also a trap for employers. Employers need to be diligent in their COVID-19 safety protocols as outlined in their IIPP.
Employer Required Reporting to Local Public Health Agencies
This is an already existing requirement but referenced in AB 685. Employers must report an “outbreak” to Local Public Health Agencies within 48 hours. Los Angeles employers and businesses need to report to LAPH by calling 888-397-3993 or 213-240-7821.
AB 685 uses the same definition of outbreak as CDPH:
COVID-19 “outbreak” is defined in a non-healthcare workplace as at least three (3) COVID-19 cases among workers at the same worksite within a 14-day period.
A COVID-19 “case” is someone who:
Has a positive viral test for COVID-19;
Is diagnosed with COVID -19 by a licensed health care provider;
Is ordered to isolate for COVID-19 by a public health official; or
Dies due to COVID-19, as determined by a public health department.
The statute goes on to discuss the infectious period. This is crucial for employers to understand the required days off for an employee who is a COVID-19 case.
The “infectious period” has two definitions.
COVID-19 Symptoms- the infectious period starts two (2) days before the individual started to develop the symptoms and ends when: (A) ten (10) days have passed since the symptoms first developed, (B) the individual has gone 24 hours without a fever and has not taken fever reducing medication and (C) the other symptoms have improved.
COVID-19 Positive Test without Symptoms- the infectious period starts two (2) days before the specimen for positive COVID-19 test was collected and ends ten (10) days after it was collected.
If an employee came to work during their infectious period the employer must notify all employees who were at the same worksite on the same days as the infected employee that they may have been exposed to COVID-19. It is very important employers do not name the infected employee and keep the identity confidential as much as possible. CDPH has published a FAQ for employers on AB 685.
What can employers do to prevent the spread of COVID-19?
Los Angeles businesses are subject to some of the most stringent COVID-19 re-opening measures in the country. There is a myriad of rules from different governing bodies. As flu season is approaching California is planning to impose even more restrictions on businesses, especially the food sector and retail. Here are some useful tips for Los Angeles employers:
Prevent the Spread of COVID-19
LAPH’s Effective Strategies outlines some suggested measures, including:
Physical distancing of at least 6 feet
Frequent hand washing
Cleaning and disinfecting surface areas
Relaxed sick leave policies- (it is recommended to speak to an attorney first)
Immediate isolation and quarantine of exposed employees
Follow LAPH’s Safer Reopening Blueprint
LAPH updated its Reopening Blueprint October 23, 2020. Check the updated blueprint for your specific business.
Refuse Service to Customers Without Face Masks
Los Angeles City Council now allows businesses to refuse service to anyone not wearing a mask. Do not be afraid to enforce this rule or call the police in the event a customer gets irate. Though not common, it is best to safeguard employees and other customers from individuals willfully failing to wear a mask. A business also does not want to get in trouble for servicing a customer that is not wearing a face mask.
Give Employees Time Off
California and Los Angeles sick leave laws have always been very challenging for small businesses to accommodate. Much of Los Angeles provides twice the amount of sick leave as the state does along with a higher minimum wage. However, I have always cautioned my clients pre-COVID-19 to be more generous than stringent on their paid sick leave.
Sick leave is a growing area of litigation that many attorneys are starting to add to lawsuits. New laws make it more enticing for employees to sue employers for failing to provide sufficient sick leave by awarding prevailing employees their attorney’s fees and costs.
If an employee is infected, shows symptoms or was exposed to COVID-19 an employer should allow the employee time off. You can review my chart on Los Angeles Sick Leave Laws. I have also created a brief post on determining if an employee’s COVID-19 is work related. Employers want to avoid employees taking advantage of paid sick leave. However, employers should look long term and allow more sick leave, paid and unpaid, to avoid a lawsuit down the line for not providing it and more so not accommodating COVID-19 illness. I have an article here on an employer's approach to the interactive process when an employee has a disability. I anticipate COVID-19 is going to be considered a disability for lawsuit purposes.
Advise Employees of their Rights if they Have COVID-19
If an employee has COVID-19 an employer is required to provide an employee a notice of their rights including unemployment, applicable sick leave and workers’ compensation benefits. Here are links to some of that information:
Update Employee Handbooks and Policies
As discussed above, employers need to have effective IIPP’s that include COVID-19 related measures. Additionally, employers should review their employee handbooks and policies. This is a very overlooked task. Too many of my clients have employee handbooks and policies that become a formality and do the employer a disservice in a lawsuit. Employers should review their handbooks at least once a year to make sure they are updated with the latest employment laws. If you don’t know the newest laws, contact an employment attorney like myself to review your handbook and policies. This is a worthwhile investment.
LAPH has free online training businesses and employees can take for COVID-19. This training gives the attendee a certificate of completion that employers should keep in the employee’s file.
Further, once you have an updated employee handbook, polices and IIPP you should train your employees. Make employees aware of the steps you are taking to protect them. Employers should document dates and times that each employee receives any training. Keep those records in the employee’s file.
Ask For Help
Businesses are often scrambling to accommodate on-going operations, employees, changing state and local policies about COVID-19 and their own personal lives. Rarely does a small business think to act with potential liability in mind. I have seen so many cases in which an employer felt blindsided by a lawsuit because they just did not know the laws.
Employers should not be afraid to ask for legal help. There are so many laws and they change so quickly. It is hard to ask a business owner to know everything and still function. I have clients who were terrified to call an attorney for fear of paying top dollar to be scolded. The truth is- employers need an attorney on their side. There is no way to guarantee an employer will not be sued, but there are ways to prevent lawsuits or have strong defenses. If you are a small business or an employer in Los Angeles and don’t know what you should do about a specific employee issue then call or email me. 818-306-0686 | firstname.lastname@example.org
Los Angeles businesses are resilient and good at adapting. We will all get through this one way or another. In a glass half full tone- this can only make us stronger and more diligent.
The information in this post is for general information purposes only. Nothing on this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.