Los Angeles County and the City of Los Angeles Issue Return to Work Orders

By Swerdlow Florence Sanchez Swerdlow & Wimmer

June 17, 2020

As Los Angeles begins to reopen amid the COVID-19 pandemic, LA County and the City of LA have each issued new Orders with which employers must comply in order to resume business.  The County of Los Angeles Reopening Safer at Work and in the Community Order and the City’s Safer L.A. Order each replace prior Safer at Home Orders and focus on returning businesses and employees to work in a safe manner.

Although the Orders are similar, there are some key differences. For example, while LA County strongly encourages telework for all office-based businesses, the City of LA only allows for in-person office-based work where telework “is not possible.” It is also possible that LA County may allow certain types of businesses to reopen while the City of LA requires them to remain closed. Therefore, companies that do business in the City of LA should ensure that they follow the requirements of both Orders, and, if the Orders conflict, follow the more restrictive of the two.

These Orders are evolving and continue to allow more types of businesses to reopen in Los Angeles, provided they comply with social distancing and required protocols. As Los Angeles enters phase 3 of reopening, there remain some higher risk industries that are required to remain closed under the Orders, including bars, wineries, breweries and night clubs, card rooms, public entertainment venues, bowling alleys, nail salons, and event gatherings. However, as LA County and City continue to reopen, it is expected that many of these employers will be able to resume business in the near future. Businesses that are currently permitted to begin the process of reopening include dine-in restaurants, office-based businesses, manufacturing companies, retail businesses, and hair salons, among many others.

Both LA County and the City of LA direct businesses to observe and comply with the Los Angeles County Public Health Protocols in their respective fields. These Protocols are referred to throughout the LA County and City of LA Ordinances as either Protocols or Appendices and many can be found at the end of the LA County Ordinance. There are Reopening Protocols for a wide range of businesses including Hair Salons and Barbershops, Outdoor Museums and Galleries, Office-Based Worksites, Restaurants, Car Dealerships, and Drive-In Movie Theaters. These Protocols are specialized and targeted to create a safer environment for employees and customers. Employers are required to implement these Protocols prior to reopening to comply with the LA County and City of LA Orders. The Protocols address the following issues to reduce the risk of the spread of COVID-19: 1) protecting and supporting employee and customer health; 2) ensuring appropriate physical distancing; 3) ensuring proper infection control; 4) communicating with the public, and 5) ensuring equitable access to services. Across all industries, the Protocols promote limiting the number of individuals gathered in one place by directing work from home where possible, staggering shifts, and instructing employees to stay home when sick. Employers are required to provide face coverings to all employees and follow cleaning and sanitizing provisions. Generally, these Protocols must be posted at all public entrances and provide contact information to an individual at the business who can answer questions regarding the Protocol. More Public Health Protocols may be added as additional industries are permitted to reopen.

It May Be Time to Update Your IIPP

In addition to the LA Ordinances discussed above, California’s Division of Occupational Safety and Health (“Cal/OSHA”) has issued statewide Interim General Guidelines on Protecting Workers from COVID-19. This guidance provides specific infection control measures that employers must implement and include in their Injury and Illness Prevention Programs (“IIPP”).

California’s general industry safety regulations require employers to establish and implement an IIPP to protect employees from workplace hazards. Among other requirements, an IIPP must include procedures for identifying and evaluating workplace hazards, correcting unsafe work conditions, practices, or procedures and training for all employees when there is a new workplace hazard. According to Cal/OSHA, COVID-19 is a foreseeable workplace hazard for most industries. Consequently, it is mandatory for employers to update their IIPPs and implement infection control measures to limit potential employee exposure to the virus.

As with the LA County and City of LA Protocols, the measures taken will vary by industry. However, Cal/OSHA provides a comprehensive list of specific prevention measures that employers should include in their IIPPs. Many of these measures overlap with the LA County and City of LA Protocols, but it is important that employers follow Cal/OSHA’s guidelines in addition to local requirements and update their IIPPs accordingly.

In addition to establishing infection prevention measures, employers must also provide employees with training on COVID-19 including, but not limited to, a general description the virus, how it is spread, how to limit spread, cough and sneeze etiquette, proper hand washing, and the safe use cleaning products.

Hospitals, nursing homes, correctional facilities, laboratories, and other high-risk industries are covered by the Aerosol Transmissible Disease Standard, which requires additional precautions and procedures to be implemented to protect against employee exposure to COVID-19 and other pathogens.

City of LA Right of Recall and Worker Retention Orders

In addition to the Safer L.A. Order, the City of Los Angeles recently issued two ordinances that will require employers in certain industries to rehire laid off or furloughed employees in a prescribed manner.

The COVID-19 Right of Recall and Worker Retention Ordinances apply to the same four types of businesses: 1) airport businesses, not including airlines; 2) commercial property businesses employing 25 or more janitorial, maintenance or security service workers; 3) event center businesses; and 4) hotel businesses with 50 or more guestrooms or gross receipts exceeding $5 million in 2019, including restaurants located on hotel premises.

The Right of Recall Ordinance requires covered employers to offer laid-off employees any position that is or becomes available after June 14, 2020, for which the worker is qualified. The laid off worker must then be provided with at least five business days to accept or decline the offer. A covered employee is a laid-off worker who: 1) in a particular week performs at least two hours of work for a covered employer within the City of Los Angeles; 2) has worked for the employer for at least six months; and 3) was discharged after March 4, 2020, due to a reduction in force, or other non-disciplinary reason. The Ordinance also creates a rebuttable presumption that any termination of employment occurring on or after March 4, 2020, was due to a non-disciplinary reason.

An employee is qualified for purposes of recall if the individual: 1) held the same or similar position at the same site of employment; or 2) is or can be qualified for the position with the same amount of training that would be provided to a new employee in the open position. Where there is more than one qualified laid-off worker for an open position, the employer must offer the job to the individual with the greatest length of service. The Right of Recall Ordinance will be in effect in the City of LA until at least March 1, 2022.

The Worker Retention Ordinance applies to the same businesses as the Right to Recall Ordinance and requires that in the event of a change in ownership of a covered business, for at least two years from the declaration of the COVID-19 emergency, or March 19, 2022, those employed on or after March 4, 2020, by the incumbent business must be placed on a preferential hiring list. The successor business employer must hire from that list, beginning from the date of execution of the transfer of ownership and continuing for six months after the business is open to the public. Any worker hired pursuant to the Ordinance must be retained by the successor business for at least 90 days. After the expiration of the 90 days, the successor business must perform a written performance evaluation of the worker and consider offering continued employment to the retained worker.

The Worker Retention Ordinance applies to an employee 1) who worked for the incumbent business employer for six months or more; 2) whose primary place of employment is a business subject to a change in ownership; 3) who is employed or contracted to perform work functions directly by the incumbent business employer, or by a person who has contracted to provide services at the business subject to change in control; and 4) who worked for the incumbent business employer on or after March 4, 2020, and prior to the transfer of ownership.

After receiving written notice of an alleged violation of either Ordinance, an employer has 15 days to cure the alleged violation. If the violation is not cured, the employee may file a civil suit to seek reinstatement. In addition, employees may seek actual damages or $1,000 in statutory damages (whichever is greater), and punitive damages under the Right to Recall Ordinance while employees filing suit under the Worker Retention Ordinance may seek front and back pay and the value of the benefits the worker would have received under the successor business employer’s benefits plan.

The laws governing employers in California are constantly evolving as businesses begin to reopen. Contact your SFSSW attorneys if you have any questions about reopening your business or about other any other workplace challenges associated with the COVID-19 pandemic.