COVID-19 Resources

OSHA Signals More COVID-19 Inspections Are Coming: 5 Steps For Employers To Prepare For The National Emphasis Program
3.15.21

Click here for 5 steps for Employers to Prepare for the National Emphasis Program.

California COVID-19 Resource Center For Employers
2.25.2021
Click here for California COVID-19 Resource Center for Employers Information.

COVID-19 Resource Center For Employers
2.25.2021
Click here for COVID-19 Resource Center for Employers Information.

CAL OSHA Emergency COVID-19 Standards
11.27.2020

Click here for CAL OSHA Emergency Covid-19 Standards PDF

California Enacts Workers’ Compensation Presumption That Applies To Most Employers With COVID-19 “Outbreaks”
9.17.20

California Governor Gavin Newsom just signed legislation that establishes a workers’ compensation presumption that will apply to most employers in the state that have a COVID-19 “outbreak” through 2022 – meaning it is much more likely that worker infections will be covered under workers’ comp coverage. This legislation, Senate Bill 1159, will shift the burden of proof to presume that covered workers who contracted COVID-19 did so at work, unless the employer can prove otherwise. The new legislation also enacts a rebuttable presumption that applies to first responders and certain health care workers. Finally, the law requires employers to provide notice to their workers’ compensation carrier of employees who test positive for COVID-19. SB 1159 was enacted as an “urgency” measure and therefore went into effect immediately. What do California employers need to know about this new law

Quick Background
As we noted back in May, Governor Newsom enacted an Executive Order that created a COVID-19 workers’ compensation presumption for any employee who worked outside the home during the statewide shelter-in-place order.

Under the California workers’ compensation system, employees need to present some medical evidence that their illness or injury was related to work in order to qualify for benefits. To meet that important threshold, they need to establish some reasonable factual basis for asserting that the workplace caused their illness or injury.

However, the Executive Order turned that analysis on its head. Instead, if any “covered worker” contracted COVID-19 during the period of time covered by the order, the illness would be automatically “presumed” to be work-related without the employee having to provide any further proof.

The Executive Order expired on July 5, 2020. When the California legislature returned to Sacramento this summer, there was a flurry of activity to establish a COVID-19 presumption moving forward, and at least three separate bills were introduced to do so. Ultimately, the only measure to make it to the governor’s desk was SB 1159, which he just signed into law and which goes into effect immediately.

Codification of Previous Executive Order
When Governor Newsom issued his Executive Order in May, there was some speculation about whether he had the legal authority to create such a presumption unilaterally, without legislative involvement. Therefore, the first thing SB 1159 is to put these legal arguments to rest by codifying the terms of the previous Executive Order into a rock-solid state statute.

Rebuttable Presumption For First Responders And Health Care Workers
SB 1159 establishes a similar rebuttable presumption for COVID-19 cases contracted by certain first responders and health care workers. This presumption applies from July 6, 2020 and will operate until January 1, 2023.

Specifically, this presumption covers firefighters, peace officers, employees of health facilities who provide direct patient care or custodial services, nurses, EMTs, and employees who provide direct patient care for home health agencies. The presumption also applies to other employees of health facilities, but the presumption for these employees does not apply if the employer can show the employee did not have contact with a patient who tested positive for COVID-19.

“Outbreak” Presumption Applies To Most Other California Employers
For all other California employers with five or more employees, SB 1159 adopts a complicated “outbreak” analysis that will be complex to implement and administer. The new law establishes a rebuttable presumption that will apply if an “outbreak” occurs, which is defined as any of the following:
* If the employer has 100 employees or fewer: four employees test positive for COVID-19 with 14 calendar days;
* If the employer has more than 100 employees: 4% percent of the number of employees test positive for COVID-19 within 14 calendar days; or
* The place of employment is ordered closed by public authorities due to a risk of infection with COVID-19.

This presumption goes into effect immediately, and relates back to cases arising or after July 6, 2020. This presumption will apply until January 1, 2023.

New Employer Reporting Requirements
SB 1159 also contains some new reporting requirements about which California employers need to be aware.

First, the new law says when an employer “knows or reasonably should know” that an employee has tested positive for COVID-19, it shall report the following information to its workers’ compensation claims administrator within three business days:
* An employee has tested positive;
* The date that the employee tests positive (the date the specimen was collected for testing);
* The specific address or addresses of the employee’s place of employment during the 14-day period preceding the positive test; and
* The highest number of employees who reported to work in the 45-day period preceding the last day the employee worked at the place of employment.

SB 1159 allows the Labor Commissioner to impose up to a $10,000 civil penalty against an employer that submits false or misleading information or fails to submit information in violation of these new reporting requirements.

Second, SB 1159 requires covered employers to go back and report any positive tests (and the same information above) to their claims administrator dating back to July 6, 2020. Because the presumption applies retroactively back to July 6, employers have to report this information to see if the rebuttable presumption will apply. You will need to move quickly as you only have 30 days from the date the bill was signed to report this previous information to their claims administrator – meaning your due date for catch-up reporting is October 17, 2020.

What’s Next For California Employers?
California employers should take heed of these significant developments as SB 1159 goes into effect immediately. As discussed above, the new law has some significant reporting requirements (including going back and reporting on positive cases dating back to July 6, 2020 by October 17). SB 1159 also has some shortened timeframes and other procedural changes to handling COVID-19 workers’ compensation claims. Therefore, employers should immediately work with employment counsel and the workers’ compensation claims administrator how to implement these new reporting requirements and how to best manage claims handling starting immediately.

Conclusion
Fisher Phillips will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate. Make sure you are subscribed to Fisher Phillips’ Alert System to get the most up-to-date information. For further information, contact your Fisher Phillips attorney, any attorney in our California offices, or any member of our Post-Pandemic Strategy Group Roster. You can also review our FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers and our FP Resource Center For Employers.

This Legal Alert provides an overview of a developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

SBA and Treasury Announce New EZ and Revised Full Forgiveness Applications for the Paycheck Protection Program

On Wednesday, June 17, 2020, the U.S. Small Business Administration, in consultation with the Department of the Treasury, posted a revised, borrower-friendly Paycheck Protection Program (PPP) loan forgiveness application implementing the PPP Flexibility Act of 2020, signed into law by President Trump on June 5, 2020. In addition to revising the full forgiveness application, SBA also published a new EZ version of the forgiveness application that applies to borrowers that:

Are self-employed and have no employees; OR
Did not reduce the salaries or wages of their employees by more than 25%, and did not reduce the number or hours of their employees; OR
Experienced reductions in business activity as a result of health directives related to COVID-19, and did not reduce the salaries or wages of their employees by more than 25%.

The EZ application requires fewer calculations and less documentation for eligible borrowers. Details regarding the applicability of these provisions are available in the instructions to the new EZ application form.

Both applications give borrowers the option of using the original 8-week covered period (if their loan was made before June 5, 2020) or an extended 24-week covered period. These changes will result in a more efficient process and make it easier for businesses to realize full forgiveness of their PPP loan.

Click here to view the EZ Forgiveness Application.

Click here to view the Full Forgiveness Application.

About the U.S. Small Business Administration
The U.S. Small Business Administration makes the American dream of business ownership a reality. As the only go-to resource and voice for small businesses backed by the strength of the federal government, the SBA empowers entrepreneurs and small business owners with the resources and support they need to start, grow or expand their businesses, or recover from a declared disaster. It delivers services through an extensive network of SBA field offices and partnerships with public and private organizations. To learn more, visit www.sba.gov.

Face Coverings Required in Public Spaces

6/18/20

Cloth face coverings help reduce the spread of coronavirus especially when combined with physical distancing and frequent hand washing. Starting June 18, 2020, Californians must wear face coverings in common and public indoor spaces and outdoors when distancing is not possible. Learn more about the guidance and limited exceptions here.

Best Practices for Boating Facilities During COVID-19

6-17-20

The California State Parks Division of Boating and Waterways (DBW) works with cities, counties, and districts throughout the state to promote safe and clean boating access. During the COVID-19 pandemic, DBW advises the boating community to follow public health guidelines consistent with the Governor’s Stay-at-Home Orders and local county public health departments. DBW has identified a set of COVID-19 safety best practices for boating facilities based on state and national guidelines. This document is for informational purposes only. DBW assumes no liability or responsibility in connection with the use or misuse of this information. The following best practices are dynamic and DBW urges all boating facility operators to know and follow local restrictions in addition to customary navigation rules.

General Recommendations

Follow state and local County and City Public Health Office's guidelines for outdoor recreation and for face coverings.
Develop a written plan for your facility operations and staff.
- Review your policies, processes and procedures and make adjustments in line with the new health guidelines to ensure that your business is prepared to safely open.
- Some components of the plan may include: List of personal protective equipment (PPE), location, how to put on, take off, and properly dispose of; daily cleaning process; important phone numbers; social distance protocols; what to do in case an employee gets sick, among others.
- Communicate and train your staff about the revised policies, processes, and procedures.
- Consider adding signage to your facility to remind staff and customers of the new safety practices.
Sanitize your facility regularly, at least daily, especially commonly touched areas (ex: Door handles, security gates, bathroom door and sink handles, toilet flushers, credit card machines, fueling stations, etc). Increased traffic in the facility may warrant increasing the cleaning schedule to twice daily (or more often). Centers for Disease Control and Prevention (CDC) has offered guidance on how to clean these areas.
- The CDC recommends using products identified by the EPA to disinfect surfaces. A list of cleaning products that meet the EPA’s criteria for use against COVID-19 can be found here.
- For electronics including computers, tablets, touchscreens, keyboards, remote controls, ATMs and credit card machines, follow the manufacturer’s instructions for cleaning and disinfecting, or consider using wipeable covers for the electronics. If no manufacturer guidance is available, consider using alcohol-based wipes or sprays with at least 70% alcohol.
- When cleaning, staff should wear gloves and clean their hands often.
If staff is interacting with customers and touching the same things they are, such as credit cards, gas pumps, or products, provide your staff with gloves. You may consider adding plexiglass barriers between your staff and customers in areas where there may be close contact, such as the facility office or service desk.
Train your staff that if they are wearing gloves, they should still not touch their eyes, nose or mouth. They should dispose of the gloves and wash their hands when their glove-requiring task is complete, or before breaks or the end of the workday.
Make sure you have enough hand sanitizer and face coverings for your staff.
Make sure you stay up to date with the CDC, EPA and OSHA guidelines during this crisis

Safe Practices around your Facility

Remind boaters that we all must follow the state and local County and City Public Health Office's guidelines for outdoor recreation and for face coverings. Ask your patrons to wear cloth face covering when around others.
Emphasize to your boating patrons and to your staff to always maintain a safe distance of six feet or more at the fuel dock, sewage pumpout, dump station, boat launch ramp, facility office and store.
If boaters cannot maintain a safe distance, recommend they leave the area and return when it is safe to do so.
Stress to boaters and staff the need to wash hands frequently or use hand sanitizer after touching items such as a marina gate, fuel pump, sewage pumpout, dump station, and handcarts.
Recommend boaters only use the boating facility as a gateway to the water and limit socialization in the parking area or on docks. Request boaters take a direct route to their boat.

Consider limiting customer entrance to the marina office or store unless they have made a prior one-on-one appointment or in case of emergency.
Place hand sanitizer dispensers on areas such as docks, gates, boat launch ramps, sewage and dump station and fuel dock areas, at the top/bottom of gangways, and in the office/clubhouse.
Docks and Boat Launch Ramps
- On narrow docks, recommend boaters use finger floats, ramps, and to wait their turn in order to maintain social distancing.
- Recommend boaters take turns to walk up/down ramps before proceeding.
- Remind boaters to wear life jackets near the water and to use sanitizer after using pay stations and self-registration stations.
- Make sure gates, PIN pads, card readers, and handles are sanitized regularly.
- Post signage about marina policy-related distancing and cloth face covering.

Handcarts
- If your facility has dock-carts, consider minimizing their use.
- Consider making sanitizing wipes and a trash can available where handcarts are stored.
- Recommend wiping down the cart handle and other surfaces after each use.

Fuel Docks
- If you do not have an attendant at your fuel dock, remind boaters to always maintain social distancing.
- Consider offering disposable gloves for customers when handling hoses and nozzles.
- Remind boaters to properly dispose of the gloves and wash their hands when fueling task is complete.
- Keep sanitizer and/or wipes nearby to clean commonly touched surfaces like credit card machines, hoses and fuel nozzles, or to clean hands after passing credit cards back and forth.
- Provide a trashcan nearby and secure it.
- Fuel dock operations should institute a payment process that limits touching the same surfaces. Consider implementing a pay-by-phone policy to limit close person to person interaction.
- In a full-service fuel dock, employees should remain socially distant from customer, use appropriate PPE, and wash hands or use hand sanitizer at the end of each transaction.
- Post signage about marina policy-related distancing and cloth face covering.

Sewage and Dump Stations
- Remind boaters to always maintain social distancing and use gloves when handling the pumpout system and dump station.
- Remind boaters to properly dispose of the gloves and wash their hands when finishing using these systems.
- Keep sanitizer and/or wipes nearby to clean commonly touched surfaces.
- Provide a trashcan nearby and secure it.
- Post signage about marina policy-related distancing and cloth face covering.

Parking and Public Docks
- Boaters should be reminded about social distancing and recommend cloth face covering when around others and while at parking areas and public docks.
- Post signage about marina policy-related distancing and cloth face covering.

Transient Boaters
- Boating facilities should follow the state and local County and City Public Health Office's guidelines and restrictions.
Restrooms and Showers
- Follow the CDC cleaning Guidelines more than once a day if possible.
- Inspect restrooms to ensure soap dispensers are stocked.
- Post a public cleaning schedule and checklist around common areas like bathrooms and showers.
- Limit number of people using these areas at any one time
Laundry Facilities
- If you decide to open your laundry facility, follow the CDC cleaning Guidelines more than once a day if possible.
- Limit the number of people in the laundry room at one time and remind users of the required social distancing
- Limit laundry room visits to the loading and unloading of washers & dryers only
- Request patrons wait outside the laundry room while the wash and dry cycles are in progress and not to fold clothes in the laundry room.

Multi-use Equipment and Life Jackets

If your facility offers life jackets and other equipment to the public on a loan basis, follow the CDC cleaning Guidelines.

Additional cleaning tips for life jackets, include:

Hand wash or sponge down life jackets in warm, soapy water. (Do not submerge inflator on inflatable life jackets.)
Follow by rinsing life jackets with clean water and hang to dry.
Clean buckles, zippers, other hardware and hook/loop fasteners (e.g. Velcro®) with a 60 – 90% alcohol solution.
Do not dry-clean, machine launder, use chlorine bleach, or apply direct heat to a life jacket.
Always store life jackets in a warm, dry, well ventilated place out of direct sunlight.

Communicate with your Boaters

Remember, communication with your tenants, customers, guests and liveaboards about your facility’s new operational guidelines is critical. You'll be able to manage the facility more effectively by setting expectations clearly and quickly, especially if certain amenities have been closed or limited, you are operating with reduced staff, or hours of operation changed. A few ideas for communicating with your boaters and visitors about your guidelines include:

Your website
Your social media platforms
Your newsletter
Email
Texting
Post signs around the commonly used areas of the property to get the message out and about.
House and Senate Pass New PPP Flexibility Act

President Trump signed the new Paycheck Protection Program Flexibility Act on June 5^th providing additional favorable revisions and flexibility for lenders and borrowers under the original PPP legislation authorized by the Corona Virus Aid, Relief, and Economic Security (CARES) Act.

Leaders from both parties pushed to pass this legislation as the clock on the initial eight week window expired for the first recipients of PPP loans. Following is a summary of the new legislation’s main points intended to reduce compliance burdens and allow borrowers to reach full, or almost full loan forgiveness:

Current PPP borrowers can choose to extend the original eight-week forgiveness period to 24 weeks, but not beyond December 31, 2020
Payroll expenditure requirements have been reduced to 60% from the initial 75% allowing for more qualified expenditures related to other operating costs. However, under the new rules, AT LEAST 60% must be spent on payroll or none of the loan will be forgiven
Creates a new 5 year minimum maturity date for post enactment PPP loans allowing lenders and borrowers to mutually agree to maturity modifications conforming to this change
PPPFA also extends the existing 6 month loan payment deferral period until the date on which the amount of forgiveness is determined, and revised other payment terms
Creates new forgiveness exemptions for employers based on employee rehire availability and/or the ability to hire similarly qualified employees, and extends the June 30 rehiring deadline to December 31, 2020
Also provides new forgiveness exemptions based on the inability of employers to return to the same level of business activity at which they operated at or prior to February 15, 2020, due to requirements for compliance with guidelines issued by the DHHS, CDC or OSHA related to sanitary, social distancing, and other safety requirements
PPPFA now permits borrowers to delay the payment of employer payroll taxes until 12/31/21 (@ 50% of amount due) and 12/31/22 (@ remaining 50% due)

As with previous changes to the PPP, borrowers can expect the SBA and Treasury Department to provide further guidance and revised regulations with the PPPFA.

For more information and access to the Paycheck Protection Program Loan Forgiveness Application go online at www.sba.gov . The COVID 19 situation and economic impact is constantly evolving, and we will continue to notify our members and the marine industry of future developments.

Best Practices for Boating during COVID-19
5/15/20

The California State Parks Division of Boating and Waterways (DBW) works with cities and counties throughout the state to promote safe and clean boating access. During the COVID-19 pandemic, DBW advises boaters to follow public health guidelines consistent with the Governor’s Stay-at-Home Orders. DBW has identified a set of COVID-19 boating safety best practices for boaters based on state and national guidelines. The following best practices are dynamic and DBW urges all boaters to know and follow local restrictions in addition to customary navigation rules.

Physical Distancing and Boating

Follow state and local guidelines for outdoor recreation. Check with local marina and yacht clubs for additional guidelines.
Only boat on waterways close to home.
Pack food, water and other things you may need as restaurants and marina stores may not be open.
Maintain a safe distance of six feet or more at the fuel dock, sewage pumpout, dump station or while loading up at the marina. If you cannot maintain a safe distance, leave the area and return when it is safe to do so.
Wash hands frequently or use hand sanitizer, after touching items such as a marina gate, fuel pump or sewage pumpout.
Limit the people aboard your boat to those in your immediate household.
Do not raft up with other boats.
Follow state and local guidelines for face coverings.

Safe Boating Practices Before Heading to the Water

Take a safe boating course and get your California Boater Card.

Even the most experienced boaters can learn from safe boating courses. California and U.S. Coast Guard boating accident data show that states with some form of boating safety education have fewer accidents and fatalities than states without any boater education requirements.

DBW maintains a list of safe boating courses approved by the National Association of State Boating Law Administrators and the state.
As of January 1, 2020, all operators of a motorized vessel on California waterways who are 35 years of age and younger are required to carry a lifetime California Boater Card.
The card is proof of successful completion of an approved safe boating course.
The California Boater Card program is being phased in by age with all boaters being required to carry the card by 2025.
For more information about the California Boater Card law, visit the California Boater Card website.

Inspect your life jacket.

Check the label to make sure the life jacket has a U.S. Coast Guard approval number, is the appropriate size, and is the right type of life jacket for the intended boating activity.
Life jackets are sized by weight and chest measurements. An adult-sized life jacket is not suitable for a child, as the life jacket may be too large and may ride up around their face or even slip off. A life jacket too small for the wearer may not provide enough flotation to keep a person afloat. Always check the fit of the child’s life jacket before entering the water.
Ensure there is no physical damage to the flotation, fabric or buckles. Flotation can break down over time and should be evaluated before use.
For inflatable life jackets, follow the manufacturer’s recommendations for maintenance on the inflator technology and inspect the bladder by manually inflating the life jacket using the inflator tube to make certain the life jacket holds air.
More information on life jackets here.

Make sure you have the right safety equipment on board.

Schedule a vessel safety check with your local U.S. Coast Guard Auxiliary or U.S. Power Squadrons.
Download a virtual vessel safety check and inspect your boat yourself.
Schedule a vessel safety check or to download the virtual safety check form here.

File a float plan before each boating trip.

Share a float plan with a family member or friend with the details of your trip in the event of an emergency.
Download a free float plan here.

Check the weather.

Know the latest weather forecast prior to going out, and check regularly for changing conditions.

Download helpful boating applications on your phone.

Boat CA is a free iOS and Android mobile app that shows you boating facilities, life jacket loan stations, laws, boat registration and more.
Pumpout Nav is a free iOS and Android mobile app that shows you where the nearest sewage pumpouts and dump stations are located.

Safe Boating Practices While on the Water

Always wear a U.S. Coast Guard-approved life jacket. Find a life jacket loan station here.
Carry all required boating safety equipment such as flares, navigation light, a horn or whistle, and a first aid kit.
Obey all navigation rules.
Never boat under the influence.
Do not boat while distracted.
Travel at safe speeds.

Tips for Cleaning Life Jackets

Hand wash or sponge down life jackets in warm, soapy water. (Do not submerge inflator on inflatable life jackets.)
Follow by rinsing life jackets with clean water and hang to dry.
Clean buckles, zippers, other hardware and hook/loop fasteners (e.g. Velcro®) with a 60 – 90% alcohol solution.
Do not dry-clean, machine launder, use chlorine bleach, or apply direct heat to a life jacket.
Always store life jackets in a warm, dry, well ventilated place out of direct sunlight.

Clean and Green Boating Tips

Prevent the Further Spread of Aquatic Invasive Species. Aquatic invasive species, such as quagga and zebra mussels, can create havoc in the aquatic environment and damage motor boats. To prevent the spread of these mussels and other aquatic invasive species, people launching vessels at any waterbody are subject to watercraft inspections and are strongly encouraged to clean, drain and dry their motorized and non-motorized boats, including personal watercraft, and any equipment that contacts the water before and after use. For free prevention resources, including a boat cleaning guide book and inspection/cleaning checklists, please visit DBW’s website.
Plan Ahead. Dump at the Pump! It is illegal to discharge untreated sewage anywhere in lakes, rivers, reservoirs or within the three-mile territorial limit for coastal waters. Never discharge treated sewage into “restricted waters” such as a marina, swimming/wading areas, a sanctuary, poorly flushed areas, lakes, reservoirs, freshwater impoundments or into federal No Discharge Zones. Use sewage pumpouts, dump stations, or mobile-pumpout services. Download the free Pumpout Nav app.
Stow it, don’t throw it. Keep your trash on-board. Never throw cigarette butts, fishing line or any other garbage into waterways. Take advantage of shore-side facilities to recycle plastic, glass, metal and paper. Used fishing line can be deposited at fishing-line recycling stations. Used fishing line that ends up in waterways can entangle and kill wildlife and cause boat damage.
Turn in a vessel before it pollutes. Proper disposal of an unwanted vessel is a vital part of clean and responsible boating. Because there are several environmental hazards associated with old vessels, including used oil, solvents and used batteries, it is important that all vessel owners properly dispose of their vessels at the appropriate time. There are several options for proper vessel disposal: the no-cost Vessel Turn-In Program, landfill disposal, recycling and/or dismantling. Visit DBW’s website for more information.
Recycle, Collect, Report. Take the necessary steps to perform spill-proof oil changes and recycle your used oil and oil filters. Always use oil absorbents and dispose of them as a hazardous waste by visiting your county household hazardous waste collection center or marina offering this service. Remember to never use soap to disperse fuel and oil spills; it increases harm to the environment and is illegal. View oil and fuel clean boating videos. Report ALL oil and chemical spills to the local marina, the National Response Center (800-424-8802) and the California Office of Emergency Services (800 OILS911).
How to Defend a Claim of Workplace COVID-19 Exposure.

As states begin to relax ‘safer at home’ orders and open up certain sectors of the economy, the number of lawsuits related to COVID-19 are increasing rapidly. Legal actions have been wide ranging. Businesses have filed suit against state or local jurisdictions. Employees have filed suit against employers. Families of virus victims have filed suit against employers as well.

As the outbreak of the virus began, the term ‘flatten the curve’ became the mantra. Along with that mantra came the guidance to support the desired outcome that included hand washing, social distancing, and the use of face mask. Similarly, employers can ‘flatten the curve’ or reduce the risk of liability by following similar business guidance related to COVID-19.

As many of the states entered phase 1, guidance was provided to employers related to worker and workplace safety. In many parts of the country, the marina industry was considered essential business and, as a result, may have already implemented those safety protocols. Every business should, by now, have developed and implemented a written Pandemic Response Plan. The plan should detail topics such as facility access, PPE requirements, social distancing, sanitation procedures, employee medical screening procedures, and employee training. Employees should have been trained on the details of the virus (symptoms, hygiene, and control measures), new procedures, and new requirements within the workplace. The employee training should be documented. Other documentation may include sanitation schedules, corrective actions, or other changes implemented.

On May 19, Federal OSHA released an updated memo for Compliance Safety and Health Officers (CSHO). For many business owners or managers, the CSHO is often referred to as the OSHA investigator and the document served to provide the CSHO guidance when responding to COVID-19 cases. The updated memo provided an interesting insight. Within the document, OSHA acknowledged “the difficulty of determining work-relatedness” of COVID-19 cases. In addition, the document stated, “Employers, especially small employers, should not be expected to undertake extensive medical inquiries”. The memo went on to list the steps employers should take related to investigating a COVID-19 case in the workplace and defined when COVID-19 cases may or may not be work related.

The Pandemic Response Plan will detail how to manage the employee with a confirmed case, presumptive case, or COVID-19 symptoms. The May 19 memo also stated employers, upon learning of a confirmed case of COVID-19, should take a few keys steps. Assuming the employee is not at the workplace, a phone call may be required. The employer should “ask the employee how they believe they contracted COVID-19”, “discuss work and out-of-work activities that may have led to the COVID-19 illness”, and “review the employee’s work environment for potential exposure”. The employer should identify employees that meet the 6/15/48 criteria meaning employees that have been within 6 feet of the confirmed case for 15 minutes duration in the 48 hours prior to the onset of symptoms. Completing this minimal investigation is key to not only preventing an outbreak but to demonstrate ‘good faith’ in terms of the employer response.

Federal OSHA provided guidance for three scenarios where COVID-19 illness is most likely work related. Even with the guidance, making a final determination may be both challenging and subjective. COVID-19 illness is most likely work related when multiple employees develop the illness with no alternate explanation. The illness is most likely work related when the virus is contracted shortly after lengthy contact with a customer or coworker with a confirmed case without an alternate explanation. The illness is also most likely work related when the employee has close and frequent exposure to the general public in a locality with community transmission without an alternate explanation.

Discovering the alternate explanation may be achieved by following the investigative guidance issued by OSHA. When multiple coworkers develop the virus, were those employees congregating outside of the workplace? For the employee with exposure to the general public, was the employee exposed by a relative or friend? The possibility of a person being asymptomatic also creates challenges when determining workplace exposure.

So what happens when an employee claims COVID exposure in the workplace? As OSHA stated, confirming workplace exposure may be challenging and the employee would need to claim how and when the exposure occurred. Assuming the employer has followed the previous outlined steps and developed a Pandemic Response Plan, implemented plan protocols, trained staff, prohibited sick employees from entering the facility, and conducted the investigation upon learning of the confirmed case the employer has completed a ‘good faith’ effort to keep employees safe. When protocols are in place and followed consistently, the risk of workplace exposure is low. As a result, the employee claim may be difficult to substantiate.

What about a customer claiming COVID-19 exposure while visiting a business? Such a claim may be difficult for a customer to substantiate. While the OSHA guidance would not apply to a customer, the logic of an ‘alternate explanation’ may certainly apply. If a customer is visiting a business such as a marina, one could certainly argue that perhaps the client visited the grocery store, gas station, or local restaurant for take-out food. At the same time, with the Pandemic Response Plan in place and no evidence of COVID-19 illness in the workplace, it may be further support the case for an alternative explanation.

As stated in the opening, the number of COVID related lawsuits is rising rapidly. At the end of the day, it will be difficult for the employer to stop the initiation of legal action. However, following all applicable regulations and guidance will be most helpful to demonstrate the ‘good faith’ effort of the business. The documentation related to business response, including the Pandemic Response Plan, employee training, medical screening, and confirmed case investigation will be a key part of defending the business from such claims.

We will continue to monitor further developments and provide updates, so you should ensure you are subscribed to Fisher Phillips’ alert system to gather the most up-to-date information.If you have questions, please contact your Fisher Phillips attorney or any attorney in our Labor Relations Practice Group.

If you have questions, please contact Robert Smith (757) 589-5391 or Travis Vance (704) 778-4163.

FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers

Updated: MAY 21, 2020

As we look toward life after the worst of the COVID-19 coronavirus pandemic has passed, business recovery will be paramount. This includes assessing business operations, bringing employees back to work, and ensuring a safe workplace. Even if these steps are further in the future for some employers than others, the time to begin thinking about these issues is now, because with these next steps comes a whole new set of labor and employment challenges.

The same workplace law firm that helped navigate you through the COVID-19 crisis is here to assist your business as you plan to get back to full strength. The FP Post-Pandemic Strategy group, comprised of a cross-disciplinary group of Fisher Phillips workplace attorneys, has assembled the following comprehensive set of FAQs that will be continually updated throughout the recovery period. It will soon be time to get back to work – and we’re here to help.

Note: If you are still dealing with issues related to the front side of the COVID-19 curve, we recommend you review our Comprehensive And Updated FAQs For Employers On The COVID-19 Coronavirus, containing a comprehensive review of the many issues you may still continue to face.

OSHA Ramps Up Employers’ COVID-19 Recordkeeping Obligations

5.20.20

The Occupational Safety and Health Administration just issued new guidance for enforcing its COVID-19 recordkeeping requirements, soon requiring covered employers to make an increased effort to determine whether they need to record and report coronavirus cases in the workplace. This new standard, which will become effective on May 26, reverses course from an agency policy released a few weeks ago that had given OSHA enforcement discretion when it came to the recordkeeping obligations for employers not in the healthcare, correction center, and emergency responder industries. What do employers need to know about this new standard?

The Basics: When Does Your Recordkeeping Obligation Kick In?
Before summarizing the new standard, it’s important to understand employers’ obligations in this area. OSHA recordkeeping requirements mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log. According to the agency, COVID-19 cases must be recorded if:

The case is a confirmed case of COVID-19;
The case is work-related (as defined by 29 CFR § 1904.5); and
The case involves one or more of the general recording criteria as outlined by OSHA: if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond “first aid,” or loss of consciousness (OSHA provides a specific and complete definition of “first aid” in 29 CFR § 1904.7(b)(5)(ii)).

Employers Must Make an Effort To Determine Work-Relatedness Of COVID-19
In its May 19 announcement, OSHA pointed to the fact that transmission of the virus and preventing infection are now better understood, and workers are returning to work. For these reasons, the agency is now taking the position that employers in all industries should determine whether employee COVID-19 illnesses are work-related and thus recordable. Thus, as of May 26, OSHA will be enforcing the recordkeeping requirements for employee COVID-19 illnesses for all employers, and not just for those in high-risk industries.

The agency has provided some leeway, however. It indicated that it understands that certain small employers lack access to employees’ medical information. For this reason, it said it will not aggressively enforce the requirement against those employers.

Further, OSHA continues to recognize the difficulty in determining work-relatedness and will assess employers’ efforts in making work-related determinations. The guidance directs agency Compliance Safety and Health Officers (CSHOs) to consider a variety of factors when determining whether an employer has complied with the obligation to make a reasonable determination of work-relatedness. These factors include:

The reasonableness of the employer’s investigation into work-relatedness. For most employers learning of an employee’s COVID-19 illness, it is sufficient to (1) ask the employee how they believe they contracted the COVID-19 illness, (2) while respecting employee privacy, discuss with the employee their work and out-of-work activities that may have led to the COVID-19 illness, and (3) review the employee’s work environment for potential SARS-CoV-2 exposure.
The evidence available to the employer. CSHOs will consider the information reasonably available to the employer at the time it made its work-relatedness determination.
The evidence that COVID-19 was contracted at work. The guidance highlights that certain types of evidence weigh in favor of or against work-relatedness. For example, when there is no alternative explanation, a case is likely work related:
- When several cases develop among workers who work closely together;
- If it is contracted after lengthy, close exposure to customer or coworker who has a confirmed case of COVID-19; or
- If an employee’s job duties include having frequent, close exposure to the general public in a locality with widespread transmission.

If an employer makes a reasonable and good faith inquiry but cannot determine whether it is more likely than not that exposure in the workplace played a role in the confirmed case of COVID-19, the agency says that the employer does not need to record the illness.

What Should You Do?
This new guidance highlights the importance of implementing preventive measures and measures for contact tracing as employees return to the workplace. You should continue to focus on minimizing the risk of transmission in the workplace and develop a procedure to investigate the circumstances surrounding employees who test positive for COVID-19. You should also be mindful of respecting employee privacy during your investigation into the work-relatedness of a confirmed case of COVID-19.

As you begin the process of reopening, you should familiarize yourself with our alert: 5 Steps To Reopen Your Workplace, According To CDC’s Latest Guidance. You should also keep handy our 4-Step Plan For Handling Confirmed COVID-19 Cases When Your Business Reopens in the event you learn of a positive case at your workplace. For a more thorough analysis of the many issues you may encounter from a labor and employment perspective, we recommend you review our FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers and our FP Resource Center For Employers.

Conclusion

Fisher Phillips will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate. Make sure you are subscribed to Fisher Phillips’ Alert System to get the most up-to-date information. For further information, contact your Fisher Phillips attorney, or any member of our Post-Pandemic Strategy Group Roster.

This Legal Alert provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

Labor Board Temporarily Changes Notice Posting Requirement Due To Pandemic

5.19.20

The National Labor Relations Board usually requires employers to post on their premises notices of findings made against it by the Board within 14 days. However, the NLRB has temporarily modified this standard rule in order to account for the changing environment created by COVID-19. Specifically, the Board recently decided that, in light of the coronavirus pandemic, employers whose facilities are currently closed but have been ordered to post a notice of violations of federal labor law must wait to do so until their offices reopen.

Background
Danbury Ambulance Service, Inc., an ambulatory company in Danbury, Connecticut, entered into an informal settlement agreement with the New England Health Care Employees Union, District 1199, SEIU to resolve two unfair labor practice charges filed by the union. Pursuant to the terms of that settlement agreement, Danbury agreed to post a notice of its violation of its employees’ rights for 60 days, meet with the union regarding the termination of an employee, and provide certain information to the union in response to an information request related to the employee’s termination.

Danbury failed to post the required notice, meet with the Union to discuss the employee’s termination, or provide the requested information. As a result, the Board entered a finding that Danbury engaged in the unfair labor practices, ordered that it cease and desist from the conduct alleged, and ordered that it post the remedial notice as it had previously agreed to do.

Board Announcement In Light Of COVID-19
In ordering that Danbury post notice of its violations of federal labor law, the Board took the opportunity to announce and implement a temporary change to its standard notice-posting rule. While employers are typically required to post notices within 14 days of receipt of an order, the Board delayed the timing aspect of this requirement for those employers whose facilities are currently closed. The Board’s temporary rule modification recognizes that employers that are temporarily closed as a result of the coronavirus pandemic may not be able to comply with such an order.

More importantly, the Board also recognized that even if an employer could comply with posting the notice within the required timeframe, the purpose of the notice-posting would not be achieved if employees are not onsite to read the notice. Accordingly, the Board’s temporary rule delays the posting of any notice by employers that are currently closed (or operating at minimal staffing) until 14 days after the employer has reopened for business with a substantial complement of its workforce present in the workplace. The Board did not set a date for when this temporary change would expire but stated that it would reinstate the prior language of the rule when conditions warrant.

What Should Employers Do?
If you are facing the prospect of posting a Board Notice during this pandemic, be aware that you will not be credited with the time period you post the Notice if your facility is closed. The recommended solution would be to wait until your workplace is operational before posting.

This also applies to employers who normally communicate with their employees through email. For this reason, any email communications you plan to send as a result of a Board action should also be delayed until employees have returned to the workplace.

We will continue to monitor further developments and provide updates, so you should ensure you are subscribed to Fisher Phillips’ alert system to gather the most up-to-date information. If you have questions, please contact your Fisher Phillips attorney or any attorney in our Labor Relations Practice Group.

This Legal Alert provides an overview of a specific memorandum. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

California Now Presumes Most Employees With COVID-19 Can Receive Workers’ Compensation Benefits

5.7.20

California Governor Gavin Newsom just enacted sweeping changes to the state’s workers’ compensation standards, providing that a broad swath of California workers who contract COVID-19 are presumed to have a workplace injury covered by the workers’ compensation system. While as many as eight other states have recently established rebuttable presumptions that certain workers with COVID-19 have valid workers’ compensation claims unless the employer can prove the employee contracted the virus outside of work, California took a giant step further. This Executive Order far outpaces any other state efforts in this regard in terms of both scope and coverage. What do employers need to know about this radical change and what can you do to both protect your workers and minimize your liability?

What Has Changed?

Under the existing California workers’ compensation system, employees need to present some medical evidence that their illness or injury was related to work in order to qualify for benefits. To meet that important threshold, they need to establish some reasonable factual basis for asserting that the workplace caused their illness or injury.

However, the Executive Order turns that analysis on its head. Instead, if any “covered worker” contracts COVID-19, it would be automatically “presumed” to be work-related without the employee having to provide any further proof. Although this presumption is rebuttable – meaning you can controvert this position with other evidence – it is likely to be a high burden for employers to meet. With a communicable disease that can be contracted in a number of ways (many of which are outside your control), how do you prove that COVID-19 was contracted outside the workplace? It’s a difficult task, meaning most claims are likely now going to be covered by workers’ compensation.

Who’s Covered?

The presumption applies to any worker who reported to work outside of the home at the direction of their employer and received a positive test or physician (licensed by the California Medical Board) diagnosis for COVID-19 within 14 days of the worker’s last day working outside of the home. If the claim is based on a physician’s diagnosis, it would require a subsequent positive test within 30 days to continue the claim. This coverage is far broader than similar presumptions established by other states, which have generally been limited to a narrow scope of front-line and other essential workers.

Other Specifics

The Executive Order reduces the timeframe for insurers to make a compensability decision from the general 90 days to 30 days. However, the order permits denials after this period based on new information. This shortened timeframe will likely result in cost pressures to the system as a whole, and could result in delays for decisions on other non-COVID-19 related workers’ compensation claims as insurers prioritize their workload.

The Executive Order also provides that compensation shall include all workers’ compensation benefits, including full hospital, surgical, medical treatment, disability indemnity, and death benefits, which are generally available to injured workers under the current system. Injured workers are only eligible for temporary disability (TD) benefits after they use all of their state and federal sick leave benefits. In addition, the Executive Order requires TD recertification every 15 days (rather than the general rule of every 45 days). Death benefits are available but will not be paid when there are no dependents.

Cost Concerns

An obvious concern for employers is what this change will mean in terms of overall costs to California’s workers’ compensation system. The difficulty in being able to successfully challenge whether an employee contracted COVID-19 in the workplace or elsewhere means that this change essentially shifts much of the pandemic costs to the workers’ compensation system. It’s hard to see how that will not result in a massive increase in costs to that system, and thereby, California employers.

The California Workers’ Compensation Insurance Ratings Bureau (WCIRB) recently completed a cost evaluation that estimated such a presumption could cost between $2.2 billion and $33.6 billion – and that was if the presumption were only limited to front-line and other essential workers. Now that the finalized order goes much further, the estimated costs could skyrocket from those initial figures.

What’s Next?

California employers have significant concerns about the cost implications this Executive Order will have on the workers’ compensation system. There is little doubt that these changes will result in additional costs to the system that will be passed through to all employers via increased premiums. However, perhaps of more importance are the more broad impacts to California’s workers’ compensation system as a whole. There have been some rumors that carriers may simply pull out of California and do business elsewhere – this could have dramatic effects on the system and California employers’ ability to find coverage.

In addition, there could be legal challenges to the Governor’s Executive Order, particularly regarding his ability to establish a workers’ compensation presumption by executive fiat, rather than through a legislative change. A judge in Illinois recently granted a temporary restraining order, blocking enforcement of a similar workers’ compensation presumption adopted on an emergency basis by the Illinois Workers’ Compensation Commission. That litigation was brought by a coalition of retailers, manufacturers, and other businesses. It seems likely that similar challenges could by mounted to California’s new rule, but it remains to be seen how that will play out. We’ll keep you updated on any legal challenges on this front.

What Should Employers Do?

California employers should take heed of this significant development. Above all, the establishment of a presumption for COVID-19 contractions underscores the need for you to closely follow CDC and OSHA guidance for minimizing or preventing exposures in the workplace. This development is even more reason for California employers to redouble those efforts in the hopes of preventing any contraction.

The shortened timeframes and other procedural changes to how COVID-19 claims will be handled also require immediate attention by California employers. You should consult closely with you carriers and employment counsel regarding these new timeframes and how to best manage claims handling starting immediately.

The Department of Industrial Relations (DIR) announced that additional guidance will be forthcoming in the coming days. Therefore, you should pay close attention to these additional details as they become available. We’ll keep you posted as soon as more details and guidance become available.

Conclusion

Fisher Phillips will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate. Make sure you are subscribed to Fisher Phillips’ Alert System to get the most up-to-date information. For further information, contact your Fisher Phillips attorney, any attorney in our California offices, or any member of our Post-Pandemic Strategy Group Roster. You can also review our FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers and our FP Resource Center For Employers.

This Legal Alert provides an overview of a developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

Boating During COVID-19: Navigating Local Restrictions & Safe Social Distancing

Boating safety is always—always—a critical consideration whenever you push off the dock, but with all the recent issues regarding COVID-19, many people are wondering if boating is considered a safe social distancing practice.

As boaters everywhere do their best to navigate these uncharted waters, we'll do our best to serve as a reliable resource in answering many of your questions about boating during the coronavirus—from navigating local boating restrictions and boat ramp closures in your area, to following best practices for social distancing on the water.

Is Boating a Safe Social Distancing Activity?

The short answer is yes, but the long answer is a bit more involved.

First and foremost, all the usual rules apply:

You need to limit the people aboard to those family members you share your home with, period—no guests.
You also can’t raft up with other boats or pull up onto a beach close to another boat, as that could put you in close proximity with the occupants.
You also have to be careful to maintain a safe distance from others when doing things like loading up at the marina or fueling the boat.
After doing anything that requires touching an item someone else may have touched, like a marina gate lock or a fuel pump, disinfect by washing your hands or using a hand sanitizer as soon as possible.

Finally, to maintain the highest level of safety pack your gear and supplies ahead of time and don’t plan to stop at a store on the way to the marina or launch ramp, as you usually might.

Where Can You Go Boating? Use our Public Water Access Guide

Infographic Courtesy of Sea Tow.

Where Can I Go Boating, and What Boat Ramps are Open in My Area?

Every state and in many cases different municipalities or counties have different regulations in place as to where you can launch a boat during this time of crisis. And these rules are changing by the day.

At Discover Boating, we strongly recommend checking on the legalities before making any trips. One resource you may want to use is our Public Water Access Guide Tool, which can help you discover nearby locations to go boating in your local community by using the interactive map. All you have to do is select your state to see the latest updates and closure status from state officials regarding public water access points, boat landings, and ramps.

Another handy resource can be found at the US Fish & Wildlife Service: State By State Closures, which lists the US Fish & Wildlife locations including many with access points, and their current status is updated daily.

Public Water Access Guide

Will I Receive Assistance If I have Mechanical Issues While Boating During the COVID-19 Crisis?

This is a question that may weigh heavily on a lot of people’s minds, since it’s another way your safety may be impacted out on the water. As we publish this report, on-the-water towing assistance from major fleets like TowBoatUS and Sea Tow remain active and able to respond (see the latest BoatUS COVID-19 statement and the Sea Tow statement on this issue).

In addition, search and rescue (SAR) and emergency personal from the US Coast Guard and most state agencies also remain active. However, due to the constantly changing nature of this emergency we highly recommend double-checking on all of the above, before taking out your boat.

How Do I Disinfect My Boat During the COVID-19 Crisis?

Like many solid surfaces, the parts of your boat could temporarily house the COVID-19 virus. As long as you keep boating between you and your family, your boat in and of itself shouldn’t be any problem. But, what if you want to be extra cautious and disinfect your boat?

In that case, go by the CDC recommendations. That means disinfecting surfaces with EPA-approved disinfectants, however, you should remember that some of the approved disinfectants (like bleach or acids) can harm some of the surfaces of a boat. The canvass and vinyls are particularly subject to damage or discoloration, if disinfecting chemicals are left on their surfaces.

So, after disinfecting be sure to give your boat a thorough wash-down. The most important thing overall is simply to maintain a clean boat; see our How to Clean a Boat Guide to keep things ship-shape.

The Bottom Line on Boating During Coronavirus

We boaters love getting out on the water, and part of that love comes from bonding with family, and spending quality time with a loved one, or just enjoying the solitude.

Thankfully, in areas where short-distance travel hasn’t been entirely eliminated we can still do all of these things safely on our boats. So check on the regulations affecting your locality. Be careful to maintain social distancing practices. And then cast off those lines and feel the wind in your hair—because boating is still the hands-down best way to enjoy living on planet Earth.

About Discover Boating:
Discover Boating is a public awareness effort managed by the National Marine Manufacturers Association (NMMA) on behalf of the North American recreational boating industry. Discover Boating programs focus on increasing participation and creating interest in recreational boating by demonstrating the benefits, affordability and accessibility of the boating lifestyle while helping to educate potential boaters and offering opportunities to experience the fun and togetherness of being on the water on a boat. Each year nearly 70 million people in the U.S. enjoy boating, the recreational activity that "connects like no other.

COVID-19 Emergency Loans available for Marine Industry Small Businesses

The Corona Virus Aid, Relief, and Economic Security (CARES) Act recently passed by Congress allocates $350 billion in 100% federally guaranteed loans to help small businesses keep workers employed amid the pandemic and economic downturn.

These loans are being offered and administered now through the SBA and local banks. Loans can be up to 2.5X the borrower's monthly payroll costs, not to exceed $10 million, and are available to small businesses (less than 500 employees) and self-employed individuals during the ensuing 12 week period. The list of For more information about the Corona Virus Emergency Loan Program contact your local lending institution and go online at www.sba.gov and www.uschamber.com/co.

The Paycheck Protection Program Borrower Application Form is available at: https://www.sba.gov/document/sba-form--paycheck-protection-program-borrower-application-form

Family First Corona Virus Response Act

The FFCRA requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The Department of Labor’s (Department) Wage and Hour Division (WHD) administers and enforces the new law’s paid leave requirements. These provisions will apply from the effective date through December 31, 2020.

The following is a What You Need To Know e-book that iHire and PeopleWorks agreed to share: PDF

Information on the FFCVR is also available from the U.S. Department of Labor: https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave

The FFCRA Employees Rights poster is available for download at: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

The 2019 Novel Coronavirus Prevention Plan is a document that is editable for you to have your own prevention plan in place. This document is available for download at: Word Document

OSHA Guidance on Preparing Workplaces for COVID-19

https://www.osha.gov/Publications/OSHA3990.pdf

U.S. Equal Employment Opportunity Commission Pandemic Preparedness in the Workplace and the Americans with Disabilities Act

The EEOC is updating this 2009 publication to address its application to coronavirus disease 2019 (COVID-19). Employers and employees should follow guidance from the Centers for Disease Control and Prevention (CDC) as well as state/local public health authorities on how best to slow the spread of this disease and protect workers, customers, clients, and the general public. The ADA and the Rehabilitation Act do not interfere with employers following advice from the CDC and other public health authorities on appropriate steps to take relating to the workplace. This update retains the principles from the 2009 document but incorporates new information to respond to current employer questions. For readers’ ease the COVID-19 updates are all in bold.

https://www.eeoc.gov/facts/pandemic_flu.html

CDC’s Updated Return-To-Work Standards

https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/steps-when-sick.html

COVID-19-RESOURCES

`COVID-19-RESOURCES`