PUBLICATIONS

Summary: On Thursday April 2, 2020, the County Health Office for San Diego County issued Addendum 1 to the County’s existing Order and Emergency Regulations. Effective at 12:00 am, April 4, 2020, employers in San Diego County who remain open in accordance with State and County Orders must adhere to strict requirements regarding face coverings for employees. Those employers also must complete and post their Social Distancing and Sanitation Protocol at or near the entrance of the facility where it is easily viewable to the public and employees no later than 12:00 am, April 7, 2020, and then adhere to that Protocol until further notice. In announcing Addendum 1, San Diego County officials stressed that law enforcement agencies have been instructed to strictly enforce the County’s Order and violators are subject to a misdemeanor citation with penalties up to $1,000 or 6 months in jail, and called upon the public to report businesses they see in violation.

The New San Diego County New Face Covering Requirement:

• All persons in San Diego County are to follow the California Department of Health Face Covering Guidance issued on April 1, 2020.
• The Addendum specifically identifies “all employees who may have contact with the public in any grocery store, pharmacy/drug store, convenience store, gas station, restaurant and other business establishment that serves food,” as being required to wear a compliant cloth face covering as described in the California Department of Health Face Covering Guidance hyperlinked above.
• Unfortunately, no guidance is provided regarding employers who are open and operating under the State and County Orders that are not in these identified categories.
• Absent further guidance, we recommend that all San Diego County employers require any employee who has contact with the public to comply with the County’s face covering requirement. Not only is this the socially responsible thing to do, with increased enforcement and a lack of a clear guidance, demonstrated compliance will protect employers from disputes with employees, the public, and law enforcement over compliance.
• Remember, the California State Order requires all persons to stay at home, except for specified reasons. One of those reasons is to go to work at a business permitted under the Orders. To avoid potential compliance issues for employees traveling to/from work, San Diego County employers should advise their employees to wear a compliant face covering when traveling to/from work.
• A note about compliance with Labor Code §2802 and IWC Wage Orders – California employers have an obligation under the Labor Code and the IWC Wage Orders to provide employees with all necessary tools and equipment, but there are exceptions to those requirements for personal protective equipment and standardized attire that does not meet the definition of a uniform. This has created confusion regarding face coverings under Addendum 1, but in the absence of specific guidance from State or County authorities, and because of the potential for significant liability, it is recommended that San Diego County employers pay for and provide employees with compliant face coverings for use while working, and maintain them as if they were part of a company uniform.

The New San Diego County Social Distancing and Sanitation Protocol Requirements:

• San Diego County employers who continue operations in accordance with the State and County Order must prepare and post a new Social Distancing and Sanitation Protocol no later than 12:00 am on April 7, 2020.
• The completed Protocol document must be posted at or near the entrance of the facility where it is easily viewable to the public and employees. If different Protocol procedures apply in different facilities, complete a separate Protocol document for each facility. The applicable Protocol document should be posted for each facility.
• It is recommended that, where physically possible, the Protocol document be posted in a manner that all pages can be viewed by the public and employees without touching them before entering the facility. Again, with increased enforcement measures in place, making it easy for law enforcement (as well as the public and employees) to see that the employer is in compliance is important. It also is advisable for San Diego employers to post the applicable Protocol document at all entrances, whether for public and employee-only access.
• Be aware that the first “Mandatory Measure to Protect Employee Health” on the Protocol document requires the employer to confirm that “everyone who can carry out their work duties from home has been directed to do so.” To be in compliance, San Diego employers who have not already done so must evaluate their operations and direct all employees who can perform their duties from home to do so. This remote work mandate creates special compliance issues related to expenses incurred by employees who work from home. Contact your FordHarrison LLP attorney for advice on how to comply.
• Protocols for certain employers include checking temperatures before employees enter facilities. Employers are reminded that under current California law, employees are to be compensated for time associated with such temperature checks, including time waiting to be checked.
• In addition to the posting requirements, San Diego County employers must provide a copy of the completed Protocol document to all employees. Employees should be provided with Protocol documents for all facilities they may access during their employment. Employers should obtain written verification that the Protocol document(s) were received by each employee to demonstrate compliance.

Enforcement Of The New San Diego County Requirements:

• San Diego County officials have made it clear that,

“Law enforcement agencies throughout the region will be out making sure that people who are in public are conducting essential activities and to keep people from being out in groups, especially if they are not members of the same family or household. People who disobey the essential business guideline or who are in groups in public are subject to a misdemeanor ticket. Penalties can be up to a $1,000 fine or 6 months in jail.”

In announcing the new Amendment, those officials, including San Diego County Sherriff, Bill Gore, and County Supervisor Nathan Fletcher, urged the public to first report violations to “someone inside,” the business, then to report the violation to law enforcement “if further action is necessary,” and directed the public to an online form for reporting companies who are in violation.

• With these heightened enforcement efforts, it is more important than ever that San Diego County employers familiarize themselves with, and comply with, the State and County Orders.
  • Re-assess whether your business is properly classified as one that may remain open, and be prepared to provide evidence justifying that classification to law enforcement if questioned;
  • Re-assess which employees have duties that can be performed remotely from home, and make sure they are working from home;
  • If you are properly open for business under the Orders:
    • Make sure your employees are complying with the face covering requirements;
    • Complete the Protocol document. Ensure it is properly posted and distributed to your employees. Ensure that you are actually doing what it says on the document;
    • Maintain readily accessible evidence demonstrating you are in compliance with the Protocol requirements;
• As enforcement authorities may demand evidence of compliance at any time, it is recommended that San Diego County Employers maintain a copy of all Protocol documents, pictures depicting all posting locations, copies of all employee receipt verifications, and other reasonable evidence that the Protocol procedures are being followed at the facility, in a centralized location. If enforcement authorities visit an employer to confirm compliance, employers should cooperate and contact a FordHarrison LLP attorney for assistance without delay.

If you have any questions regarding this Alert, please contact the author, Cory King, cking@fordharrison.com, partner in our San Diego office, or the FordHarrison attorney with whom you usually work.

FordHarrison is closely monitoring the spread of Coronavirus and associated federal and state legislation and has implemented continuity plans, including the ability to work remotely in a technologically secure environment when necessary, to ensure continuity of our operations and uninterrupted service to our clients. We are following all CDC guidelines and state and local laws as applicable. We are committed to ensuring the health and welfare of our clients, employees, and communities while continuing to provide our clients with the highest quality service. Please see our dedicated Coronavirus Taskforce and Coronavirus – CARES Act pages for the latest FH Legal Alerts and webinars on Coronavirus and workplace-related provisions of the CARES Act, as well as links to governmental and industry-specific resources for employers to obtain additional information and guidance. For more information or to be connected with a Coronavirus Taskforce or CARES Act attorney, please contact clientservice@fordharrison.com.