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Presented by:

Pamela Tahim Thakur, Esq.

THAKUR LAW FIRM, APC

[email protected]

www.thakurlawfirm.com

(714) 772-7400

How to Adapt Your Medical Practice to the Evolving

Workplace During COVID-19

September 17, 2020

PAMELA TAHIM THAKURManaging Attorney

THAKUR LAW FIRM, APC

Pamela Tahim Thakur is the Managing Attorney of Thakur Law Firm, APC and is the former Chair of the Orange County Bar Association, Health Care Section. Thakur Law Firm, APC is a full-service law firm that represents physicians and their practices in several different aspects of healthcare, business and employment law, including federal and state laws and regulations, Medical Board representation, HIPAA compliance, creations, mergers, sales and acquisition of healthcare practices, and more. Her employment litigation experience includes defending against class action and individual claims for wage and hour violations, wrongful termination, discrimination, harassment, retaliation, and trade secret misappropriation.

From 2017-2019, she was selected by her peers as a “Rising Star” for Super Lawyers and a Super Lawyer for 2020 and 2021. In addition to her litigation work, Pamela advises businesses and corporate clients on a whole array of employment issues, including in preparing and updating employment policies, drafting employee handbooks in compliance with the latest changes in state and federal employment laws, as well as assisting in disciplining and terminating employees and complying with leave and disability rules. Pamela also provides seminars for employers on best practices compliance and to assure compliance with California’s mandatory supervisor employee harassment training requirements.

PremierBusiness Partners

San Bernardino Medical Society

Riverside County Medical Association

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mailto:[email protected]

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Disclaimer

The contents of this presentation are provided for information only, to be used by medical practices as deemed most appropriate to the individual business.

Medical practices should make these decisions in consideration of what is best for their individual needs. This presentation is provided for informational purposes based upon the information available, which is continuously changing. Nothing stated herein shall be considered legal advice or intended to create an attorney-client relationship.

TOPICS FOR TODAY

5) Complying with California Privacy Laws

2) Remote Work Considerations

3) Minimizing Risk of Workplace Lawsuits and Workers’ Compensation

4) Accommodating Disabilities and Complying with Leave Laws

6) Frequently Asked Questions

1) Reopening and Keeping Medical Practices Open in COVID-19 Era: Common Legal Issues

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1. Reopening and Keeping Medical Practices Open in COVID-19 Era: Common Legal Issues

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Common Legal Issues

▪ How can a medical practice comply with its legal obligation to provide a safe and healthy workplace during the COVID-19 pandemic?

▪ What should a medical practice do if an employee claims he or she was exposed to COVID-19 at work?

▪ How should employers handle employees who are working remotely?

▪ What are the policies for sick pay, leave of absence, reasonable accommodations and business expenses?

▪ How do medical practices comply with wage and hour laws when healthcare providers (HCPs) are working remotely?

▪ How can medical practices protect confidentiality issues when employees are working remotely?

▪ How should employers handle employee who refuse to return or are afraid to return to work?

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How Can a Medical Practice Provide a Safe and Healthy and Legally Compliant Workplace

❑ Check Government Websites for Updated Laws, Regulations and Orders

❑ Find Industry-Specific Guidance and Review it Completely

❑ Perform a Detailed Risk Assessment

❑ Create a Worksite-Specific Protection Plan

❑ Train Employees on How to Limit the Spread of COVID-19

❑ Train Employees on How to Screen Themselves for Symptoms Before Entering the Office/Facility and When to Stay Home

❑ Set Up CDC Control Measures for Healthcare Providers

❑ Develop an Action Plan for Suspected/Confirmed Cases in Healthcare Providers

❑ Implement Sick Leave Policies and Practices that are Flexible and Supportive

❑ Post Your Completed Checklist

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Check Government Websites for Updated Laws,

Regulations and Orders

▪ Check local public health information and the CDC COVID-19 website daily and often check with federal, state, county and local government agencies

▪ San Bernardino County COVID-19 Response Website: https://www.sbcovid19.com

▪ State Agency Websites:

➢ Official website for California Coronavirus (COVID-19): https://covid19.ca.gov

➢ Employer Playbook for Safe Reopening: https://files.covid19.ca.gov/pdf/employer-playbook-for-safe-reopening--en.pdf

➢ Cal/OSHA Requirements to Protect Workers from Coronavirus: https://www.dir.ca.gov/dosh/coronavirus/

➢ Labor Commissioner’s Office: https://www.dir.ca.gov/dlse/Coronavirus-(COVID-19)-Information.htm

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https://www.sbcovid19.com

https://covid19.ca.gov

https://files.covid19.ca.gov/pdf/employer-playbook-for-safe-reopening--en.pdf

https://www.dir.ca.gov/dosh/coronavirus/

https://www.dir.ca.gov/dlse/Coronavirus-(COVID-19)-Information.htm

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Check Government Websites for Updated Laws,

Regulations and Orders

▪ Federal Agency Websites:➢ Centers for Disease Control and Prevention (CDC)

Interim Guidance for Businesses and Employers: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance- business-response.html

➢ U.S. Department of Labor (DOL):https://www.dol.gov/coronavirus

➢ Equal Opportunity Employment Commission (EEOC):https://www.eeoc.gov/coronavirus

➢ Occupational Safety and Health Administration (OSHA): https://www.osha.gov/SLTC/covid-19/

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Find Your Industry-Specific Guidance and Review it

Completely

All businesses and facilities MUST follow guidance published by the State of California for your specific industry, business, or activity

▪ Industry-Specific Guidance for Health Care Facilities is published at the website for Cal/OSHA and Statewide Industry Guidance on COVID-19: https://www.dir.ca.gov/dosh/coronavirus/Health-Care-General-Industry.html

▪ Guidance for Health Care Facilities is published on Cal/OSHA website, NOT with most other industries in the “Employer Playbook for a Safe Reopening,” but you should still review the Playbook for lots of valuable generally-applicable guidance

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https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-%20business-response.html

https://www.dol.gov/coronavirus

https://www.eeoc.gov/coronavirus

https://www.osha.gov/SLTC/covid-19/

https://www.dir.ca.gov/dosh/coronavirus/Health-Care-General-Industry.html

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Set Up CDC Control Measures for Healthcare Providers

▪ Review CDC Infection Control Guidance for Healthcare Workers: https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-recommendations.html

▪ Use additional infection prevention and control practices, along with standard practices as part of routine healthcare delivery to all patients➢ Implement Telehealth and Nurse-Directed Triage Protocols➢ When scheduling appointments for routine medical care, instruct patients to

call ahead and discuss the need to reschedule their appointment if they have symptoms of COVID-19

➢ Advise patients they must put their own cloth face covering or face mask before entering facility and have face masks available for patients

➢ Use nurse-directed triage protocols to determine if appointment is necessary or if the patient can be managed from home

➢ If a COVID-19 patient must come in, instruct to call ahead to inform triage personnel of symptoms and take preventative actions



▪ Screen and Triage Everyone entering a healthcare facility for signs and symptoms of COVID-19➢ Actively take temperature and document absence of COVID-19 symptoms➢ Identify and properly manage anyone asked to self-quarantine for COVID-19

▪ Limit and Monitor Points of Entry to Facility▪ Consider establishing Screening Stations outside facility to screen individuals

before they enter▪ Ensure everyone adheres to Source Control Measures and Hand Hygiene Practices

while in healthcare facility➢ Post visual alerts (e.g. signs, posters) at entrance and strategic places with

instructions about PPE and hand hygiene➢ Provide supplies for respiratory hygiene and cough etiquette, including

alcohol-based hand sanitizer with 60-95% alcohol, tissues, and non-touch receptacles for disposal at facility entrances, waiting rooms, and patient check-ins

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https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-recommendations.html

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▪ Implement Universal Source Control Measures, i.e. use of face masks for everyone in healthcare facility (employees, patients, visitors, HCP) at all times and educate about hand hygiene before and after contact with face mask

▪ Encourage Physical Distancing (maintaining 6 ft between people) by limiting visitors to facility, scheduling appointments to limit number of patients in waiting room, arranging seating in waiting rooms so patients can sit 6 ft apart

▪ Implement Universal Use of PPE for all health care workers, including eye protection in addition to face mask, N95 or equivalent or higher-level respirator, instead of face mask for aerosol generating procedures and surgical procedures that pose higher risk for transmission of COVID-19



▪ Consider targeted SARS-CoV-2 Testing of Patients without signs or symptoms of COVID-19 to identify those with asymptomatic or pre-symptomatic SARS-CoV-2; however make sure it is not-discriminatory

▪ Consider postponing elective procedures, surgeries, and non-urgent outpatient visits in certain circumstances

▪ Optimize use of engineering controls and indoor air quality, physical barriers, outdoor assessment/triage stations, vacuum shrouds, or open bay recovery areas

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Develop COVID-19 Site-Specific Protection Plan

(SPP)

Implement findings from a Detailed Risk Assessment to create Site-Specific Protection Plan (SPP) to protect safety of employees and patients consisting of:

▪ A designated person responsible for implementation of SPP or COVID-19 Response Coordinator

▪ Individual control measures and screenings

▪ Cleaning and disinfecting protocols

▪ Physical distancing guidelines

▪ Availability of personal protective equipment (PPE)

▪ Protocol for notification of positive COVID-19 case at worksite

▪ Employee training

▪ Compliance and documentation


Develop an Action Plan for Suspected/Confirmed

Asymptomatic/Symptomatic Cases

Guidance for Asymptomatic HCP Who Were Exposed to Individuals with Confirmed COVID-19

Exposure Personal Protective Equipment Used Work Restrictions

HCP had prolonged close contact with patient, visitor, or HCP with confirmed COVID-19

HCP not wearing a respirator or facemask

Exclude from work for 14 days after last exposure

HCP not wearing eye protection if person with COVID-19 was not wearing face covering

Advise HCP to monitor self for fever or symptoms of COVID-19

HCP not wearing all recommended PPE (gown, gloves, eye protection) while performing aerosol procedure

Any HCP who develops fever or COVID-19 symptoms should immediately get tested

HCP other than those with exposure risk described above

N/A No work restrictions; follow recommended prevention and control practices

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Return to Work Criteria for HCP with COVID-19 Infection:

▪ Symptom-based Strategy for determining when HCP can return to work➢ HCP with mild to moderate illness who are not immunocompromised:

• At least 10 days have passed since symptoms first appeared AND• At least 24 hours have passed since last fever without the use of fever-

reducing medications AND• Symptoms (e.g. cough, shortness or breath) have improved

➢ HCP with severe to critical illness or who are severely immunocompromised:• At least 10 days and up to 20 days have passed since symptoms first

appeared AND• At least 24 hours have passed since last fever without the use of fever-

reducing medications AND• Symptoms (e.g. cough, shortness or breath) have improved• Consider consultation with infection control experts




Return to Work Criteria for HCP with COVID-19 Infection:

▪ Test-Based Strategy for determining when HCP can return to work➢ HCP who are symptomatic:

• Resolution of fever without the use of fever-reducing medications AND• Improvement in symptoms (e.g. cough, shortness or breath) AND• Results are negative from at least two conclusive respiratory specimens

collected more than 24 hours apart using FDA-authorized molecular viral assay

• After returning to work, HCP should:➢ Self-monitor for symptoms and seek re-evaluation from occupational health if

symptoms recur or worsen.

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Responding to COVID-19 in the Health Care Facility

▪ Maintain confidentiality of employees and patients with suspected or confirmed COVID-19 infection when communicating with other employees

▪ Notify local health department about suspected or confirmed cases of COVID-19 and establish plan with local public health authorities for how exposures in healthcare facility investigated and managed and how contact tracing performed

▪ Notify all employees who were potentially exposed to employees or patients with COVID-19.

▪ Provide healthcare consultations needed to advise workers regarding their exposure, especially those with high-risk medical conditions (e.g., immune compromise or pregnancy)

▪ Close contacts of cases should be given instructions on home quarantine and symptom monitoring, and testing

▪ Provide any employees who are sent home information about sick leave rights and return-to-work requirements

▪ Employees who were never symptomatic and did not have close contact with lab-confirmed cases may continue to work



Perform deep/enhanced cleaning and disinfection after employees or patients with COVID-19 have been in facility:

▪ Areas where infected employees or patients present should not be entered until they have been cleaned and disinfected with products approved by EPA for COVID-19. Work should be performed by cleaning staff trained on safe use and supplied with all required and recommended PPE.

▪ Perform ongoing enhanced/disinfection or work areas when an employee or patient with COVID-19 is identified, following CDC recommendations

▪ Continue to identify and regularly clean and disinfect frequently touched surfaces throughout the facility, such as doorknobs, equipment, and handrails

▪ Employees should not share headsets or other objects that may come into contact with their face, mouth, or nose; for equipment that must be shared, conduct frequent cleaning between employee use.

▪ Train employees on safe use of cleaners and disinfectants and provide necessary PPE.

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▪ Investigate and analyze exposure incidents to determine if employees had significant exposures to COVID-19. Make exposure analysis available to local health department

➢ Significant Exposure is exposure to aerosol transmitted pathogen in which circumstances of exposure make transmission of disease sufficiently likely that employee need further evaluation by licensed health care practitioner.

▪ Have licensed health care practitioner provide medical evaluations to employees who had a significant exposure, which includes any appropriate vaccination, prophylaxis, and medical treatment


Implement Sick Leave Policies and Practices that are Flexible

and Supportive

▪ Ensure sick leave policies and practices are consistent with public health guidance, follow state and federal workplace laws and policies, and are shared with employees.

▪ Allow employees to stay home, without penalty, to care for a sick family member or take care of children due to closures.

▪ If you do not offer sick leave, consider implementing non-punishing “emergency sick leave” policies.

▪ Support and encourage telework, if available.

▪ If applicable, consider offering vulnerable workers duties that minimize their contact with patient and other employees (e.g., clerical duties).

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2. Remote Work Considerations for HCPs


Remote Working for Healthcare Professionals (HCP) during

COVID-19

Remote working can be an effective control measure to avoid the spread of COVID-19 among HCP employees.

▪ Determine which HCP workers are eligible for remote work

➢ May include clinicians offering telehealth services, case managers, administrative, financial, billers, IT workers, and others working at home or away from facility

▪ Create clear written policy (Employee Handbook or COVID-19 Addendum) for remote healthcare work to convey:

➢ Remote work is a temporary control measure for COVID-19 and may be terminated at will at any time, requiring employee to return to work at facility

➢ Expectations for productivity, communication and performance

• Performance should focus on output and completion of objectives, rather than time-based if possible

• If time parameters are necessary, explain method for tracking and reporting time

• Specify requirements for availability and communication with supervisors and/or patients

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Remote Working Policies & Practices

▪ Technology and supplies for remote working

➢ Be clear about what equipment and supplies are required for remote work

➢ Specify what equipment and supplies provided by employer and what employees must provide

➢ What resources must employees have at remote work site available (e.g. laptop, videoconferencing or Zoom capabilities)

➢ Use communication technology like Zoom or Teams to maintain team collaboration

➢ Provide accessible IT support for remote workers with technical difficulties

▪ Reimbursement of work-related expenses

➢ Under Cal. Lab. Code §2802, employers must indemnify employees for “all necessary expenditures incurred by the employee in direct consequence of the discharge of his or her duties”

➢ May include partial or full expense of home and/or mobile phone bill, postage and shipping costs, home office modifications, and high-speed internet connection or Wi-Fi


Legal Considerations for Remote Working

▪ Remote workers entitled to same legal protections that in-office workers have

➢ Maintain HIPAA Privacy protections for patients’ private healthcare or healthcare-related information if shared in remote work environment

➢ Must comply with state and federal wage and hour requirements for non-exempt employees, including:

• Overtime pay for hours over eight (8) in a day or more than forty (40) in a week

• Thirty (30)-minute meal break for shifts of more than five (5) hours

• Ten (10)-minute rest breaks for every four (4) hours worked for shifts of three-and-a-half (3.5) hours or more

• Travel time during workdays for work-related purposes must be compensated

➢ Allow overtime only if specifically authorized, but must pay if employee works OT

➢ Prohibit working outside regular business hours without authorization to avoid “off-the-clock” work

➢ On-the-job injuries still covered by workers’ compensation, so ensure remote working conditions are safe

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3. Minimizing Risk of Workplace Lawsuits and Workers’ Compensation


Most Likely Legal Claims Against Employers Expected to

Result from COVID-19

▪ Most likely workplace litigation claims:

➢ Failure to reimburse for telework expenses

➢ Failure to reimburse for expense of PPE

➢ Violation of California Consumer Privacy Act Notice Requirements for collection of employees’ private healthcare information (e.g. temperature, symptoms, contact with infected persons)

➢ Missed Meal and Rest Break claims

➢ Unpaid overtime

➢ Off-the-clock work claims (e.g. unpaid travel time, reporting time pay)

➢ Misclassification/loss of exempt status

➢ Age, Race, Disability Discrimination, harassment, or retaliation claims

➢ Whistleblower claims for employers refusing to comply with county, state or federal guidelines

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Minimizing Workplace Discrimination Claims Related

to COVID-19

▪ California’s Fair Employment and Housing Act (FEHA) makes it unlawful to an employer to discriminate, harass, or retaliate against an employee or job applicant because of race, color, ancestry, national origin, religion, age (40 and over), disability, sex and gender.

▪ COVID-19 was first referred to as Wuhan virus and there was a noticeable increase in discrimination against Asian-Americans upon the initial outbreak

▪ Other protected characteristics to be aware of are age and disability

➢ Employers must avoid discriminating against older and/or disabled employees even if the employer’s intentions are good

➢ Employer cannot force employee to stay home simply because employee has underlying condition which makes him more susceptible to COVID-19

➢ Employer may not take “adverse action” against employee, unless underlying condition presents direct threat to employee which cannot be eliminated by reasonable accommodation

➢ Must ensure COVID-19 testing requirements applied consistently among all employees

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COVID-19 and Workers’ Compensation

▪ By executive order on May 6, 2020, California has created a rebuttable presumption that the COVID-19 infection occurred at work entitling employees to Worker’s Compensation benefits as the exclusive remedy for injuries.

▪ Any COVID-19 related illness shall be presumed to arise out of and in the course of employment (AOE/COE) for purposes of awarding workers’ compensation benefits if all of the following requirements are met:

➢ Employee tested positive or diagnosed with COVID-19 within fourteen (14) days after a day that the employee performed labor or services at the employee’s place of employment (excluding the employee’s residence) at the employer’s direction;

➢ The date the employee performed work at the employer’s place of business was on or after March 19, 2020;

➢ The employee’s workplace was not their home or residence; and,

➢ The diagnosis was made by a physician who holds a physician and surgeon license issued by the CA Med. Board and diagnosis is confirmed by further testing w/in 20 days of date of diagnosis

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COVID-19 and Workers’ Compensation

▪ Reduced Decision Period

➢ Time period to deny a claim for a presumed AOE/COE COVID-19-related illness shortened from 90 days to 30 days

➢ If claim is not denied within 30-day period, it will be presumed compensable and can be rebutted by “evidence only discovered subsequent to 30-day period”

➢ This does not change existing standard, which preclude employer from rebutting the presumption with evidence that could have been obtained within 30-day period with the exercise of reasonable diligence.

▪ Employer can rebut the presumption that COVID-19-related illness is AOE/COE by “other evidence”

➢ Best evidence would come from testimony that friend or family member was diagnosed with COVID-19 or medical records providing contrary statement to physician that employee came in contact with COVID-19 outside workplace

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Proposed Legislation Affecting COVID-19

Workers’ Compensation Claims

▪ SB 1159, which recently passed Senate, would create rebuttable presumption for “critical” employees if injury develops during period in which critical worker is in the service of an essential critical infrastructure employer; the injury is confirmed by positive lab test or documented physician’s diagnosis; and injury resulted in hospitalization or significant time lost beyond shift at time of injury

▪ This new bill will essentially codify the rebuttable presumption of industrial injury for employees at work who contracted COVID-19 March 19, 2020 through July 5, 2020. Two new presumptions are created: one for first responders and healthcare workers from July 6, 2020 forward and one for employees who contracted COVID-19 during an outbreak at the employer's worksite, extending the rebuttable presumption to Jan. 1, 2024

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4. Accommodating Disabilities and Complying with Leave Laws

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Duty to Reasonably Accommodate and FMLA Leave

Law Violations

▪ Reasonable Accommodation of COVID-19 Disability

➢ COVID-19 qualifies as bona fide disability protected under FEHA, triggering employer’s duty to engage in the interactive process and reasonably accommodate employee’s disability, unless it would cause the employer an undue burden

▪ Leave Law Claims

➢ Under the Federal Family Medical Leave Act (FMLA) or California Family’s Rights Act (CFRA) employers with 50 or more employees must provide employees with up to 12 weeks of unpaid job-protected leave for family and medical reasons (including COVID-19-related)

➢ Employer must reinstate employees to their prior positions after returning from leave

➢ Employers may not retaliate against employees for taking such leave

➢ Violations of FFCRA leave provisions may be pursued as retaliation claims under FMLA or under Federal Fair Labor Standards Act (FLSA) for unpaid wages

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Complying with the Families First Coronavirus

Response Act (FFCRA)

▪ Under the FFCRA, an employee at a business with fewer than 500 employees is entitled to take leave related to COVID-19, if the employee is unable to work because he or she is:

1. Subject to quarantine or isolation order

2. Advised by a health care provider to self-quarantine

3. Experiencing symptoms associated with COVID-19 and seeking medical diagnosis

4. Caring for an individual subject to a quarantine or isolation order

5. Caring for a child whose school or place of care is closed or unavailable due to coronavirus-related reasons

6. Experiencing any other substantially similar condition specified by DOH

▪ Documentation Prior to Leave: Dept. of Labor (DOL) released revised regulation effective Sept. 16th, employers may require employees provide documentation to support need for leave as soon as practicable. Former rule said employers could require documentation before leave started, which isn’t always practical.

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Complying with the Families First Coronavirus

Response Act (FFCRA)

▪ Up to two weeks paid sick leave is available to qualifying employees. For the first three reasons, the amount is based on employee’s regular rate of pay. For the fourth and sixth reasons, the amount is two-thirds employee’s regular rate.

▪ An additional 10 weeks of partially paid expanded family and medical leave is available to some employees when their children’s school is closed or childcare is unavailable, at two-thirds employee’s regular rate of pay.

▪ Approval for Intermittent Leave for Childcare: DOL released revised reg. effective Sept. 16th, employees must get approval from employer for intermittent leave. BUT, leave is NOT intermittent if school or daycare is closed on certain days or half days.

➢ Example: If child’s school is open on Tues and Thurs, but has remote learning Mon, Wed, Fri, employee would need leave on Mon, Wed, Fri, with each day being a separate leave event. Does NOT constitute intermittent leave, requiring employer’s approval.

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“Health Care Provider” and “Emergency

Responder” Exclusions from the FFCRA

▪ BUT, the FFCRA allows employers to exclude “Health Care Provider” and “Emergency Responder” employees from coverage.

▪ DOL released revised narrower definition of “Health Care Provider” effective Sept. 16th

➢ “Health Care Provider” for purposes of denying leave under FFCRA includes physicians and others who make medical diagnoses; employees who provide diagnostic services, preventative services, treatment services, or other services necessary for patient care; and employees who provide services that, if not provided, would adversely affect patient care.

➢ Example: Nurse assistants and lab technicians who process test results are considered health care providers, but IT workers and medical billers are NOT considered health care providers.

▪ “Emergency responders” include anyone necessary to provide transport, care, healthcare, comfort and nutrition to COVID-19 patients or others needed for the response to COVID-19, such as fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, EMTs, paramedics, and emergency management personnel.

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“Health Care Provider” and “Emergency

Responder” Exclusions from the FFCRA

▪ An employer is required to retain all documentation regarding employee requests for leave for four years, including denials of requests, based upon the “Health care provider” or “Emergency responder” exclusions.

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Small Business Exemption from the FFCRA

▪ The Act also provides an exemption ONLY for paid leave requested to care for a child whose school is closed or childcare unavailable for small businesses with fewer than 50 employees, if complying with these requirements would jeopardize the viability of the business as a going concern.

▪ A small business may claim this exemption if an authorized officer of the business has determined that:

➢ Providing paid leave would result in business’s expenses and obligations exceeding available revenues and cause business to cease operating at minimal capacity;

➢ Absence of the employee requesting leave would entail substantial risk to financial health or operations of business, because of specialized skills, knowledge or responsibilities; or

➢ There are not sufficient workers available to perform services by employee requesting leave and services are needed for business to operate at minimal capacity.

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Small Business Exemption from the FFCRA

▪ Because employers may be eligible for reimbursement of paid leave through refundable tax credits, some analysts have opined that the benefits of claiming this exemption do not outweigh the risk of possibly incurring significant legal defense costs because of misapplied exemption.

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6. Complying with California Privacy Laws

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COVID-19 and California Privacy Law

▪ California Consumer Privacy Act (CCPA) requirement took effect July 1, 2020, requiring employers to provide notice to employees what information will be collected during health screenings and/or temperature checks and take reasonable security measures to safeguard information.

▪ Information about employees and their family members with COVID-19 symptoms meets definition of personal information under CCPA

▪ Employers must provide employees with notice of COVID-19-related business purposes for which collected personal information will be used, whether collecting from at-home or self-screenings

▪ Employers that fail to comply with notice requirement may be subject to civil penalties from $2,500 for a non-intentional violation to $7,500 for an intentional violation.

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5. Frequently Asked Questions


Frequently Asked Questions for Healthcare Providers During

COVID-19

▪ What testing does CDC recommend for employees in the workplace?

➢ CDC does NOT recommend use of Antibody Tests to determine which employees can work. Antibody tests check for past COVID-19 infection. CDC does not yet know if people who recover from COVID-19 can get infected again. CDC DOES recommend Viral Tests, which check a respiratory sample (such as swabs of the inside of the nose) for current COVID-19 infection.

▪ Do Healthcare Providers have to provide masks/respirators to HCP employees?

➢ Yes, HCP must wear a facemask at all times while they are in the healthcare facility. Consider providing disposable facemasks. Facemasks are recommended by the CDC over cloth face coverings for HCP. Healthcare Provider employers must provide HCP an N95 or equivalent or higher-level respirator instead of a facemask for aerosol generating procedures and surgical procedures that might pose higher risk for transmission if the patient has COVID-19.

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COVID-19

▪ What if an employee appears ill, but refuses to leave the workplace?

➢ Explain to the employees the non-discriminatory, public health nature of the request to leave and instruct them to leave. Offer to allow employee to use paid sick leave or other leave benefits if available.

▪ What if an employee refuses to return to work?

➢ Generally, employees may only refuse to come to work if they believe they are in “imminent danger.” Threat must be immediate or imminent, and objectively reasonable.

➢ Most workplaces, including healthcare facilities, do not meet the elements required for an employee to refuse to work in these circumstances even during COVID.

➢ Employee may be entitled to leave for reasons covered by FFCRA, but “Healthcare Providers” and “Emergency Responders” may be excluded from FFCRA.



COVID-19

▪ What do I do if my employees are refusing to return to work because their unemployment benefits are greater than their regular wages, due to additional pandemic benefits?

➢ Technically, employees who have been made an offer of re-employment are no longer entitled to collect unemployment benefits. With some exceptions, employees will lose their unemployment benefits if they refuse to return to work. Before threatening to report employees to Employment Development Department (EDD), consider offering remote work.

▪ If an employer is hiring, may it screen applicants for COVID-19?

➢ Yes, but only after making a conditional offer of employment. Job offers should be in writing and include as a condition that the employee test negative for COVID-19.

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COVID-19

▪ May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or related symptoms?

➢ Yes, based on current CDC guidance, such individuals cannot safely enter the workplace, so employer may withdraw the job offer.

▪ May an employer delay an applicants start date who has COVID-19 or related symptoms?

➢ Yes, according to the CDC, such individuals should not be in the workplace.

▪ May an employer take an applicant’s temperature as part of a post-offer pre-employment medical examination?

➢ Yes



COVID-19

▪ When must employers report COVID-19 illnesses to Cal/OSHA?

➢ Only if employee becomes ill at work and is admitted as an in patient at a hospital other than for observation or testing.

▪ Must employers record COVID-19 illnesses on their OSHA Form 300 logs?

➢ Yes, if the illness results in death; days away from work; restricted work or transfer to another job; medical treatment beyond first aid; loss of consciousness; or a significant injury or illness diagnosed by a doctor.

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Our Services

The team at Thakur Law Firm is here to assist your business as you plan to get back to full strength. The following are some specific solutions we have provided to our business clients during the COVID-19 pandemic and reopening phase:

▪ COVID-19 Policies & Practices Employee Handbook Addendum

▪ Remote-Working Policies

▪ Checklist for what to do if employee is infected or experiencing symptoms of COVID-19

▪ Policies and postings for compliance with California Consumer Privacy Act (CCPA)

▪ Policies and postings for compliance with Federal Families First Corona Virus Response Act (FFCRA) paid leave requirements

▪ Visitor & Staff Temperature Log Sheets

▪ Employee Self-Screening Checklist and Log Sheet

▪ Workplace Cleaning & Disinfecting Protocols

▪ Customer Consent to Treatment and Waiver of Liability for Medical Practices

Thakur Law Firm, APC

Southern California Office (Main Office):1400 N. Harbor Blvd. Suite 410Fullerton, California, 92835Phone: (714) 772-7400Email: [email protected]

Northern California Office:4695 Chabot Drive, Suite 104Pleasanton, California 94588Phone: (714) 772-7400

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