Return to Work Plans During the COVID-19 Pandemic

by Sonya Goodwin

As the economy has started to open back up, employers of all kinds should have a return to work plan in place to prepare for the inevitable return of employees to the workplace. Here are just some tips on how to plan for that return:

  • Communicate, communicate, communicate
    • Many people are experiencing heightened anxiety and fear due to all of the unknowns right now. While employers are also trying to navigate the many unknowns, it is beneficial to keep employees informed of tentative dates of reopening (to the extent possible and with the understanding that these dates are flexible), what the “new normal” might look like when they get back to the office, and what the employer will do to ensure a safe work environment. Sending periodic emails about these items prior to opening the workplace might relieve some of the anxieties that employees are facing right now.
    • Many employees will be scared or reluctant to come back to work. It is best practice to be aware of employee’s concerns, and remain communicative on what you are doing to create a safe work environment for employees. Remind employees to talk to their supervisors/HR if they have any issues so they can be addressed early on. It is also important to remind employees that they will not be retaliated against for expressing their concerns.
  • Social Distancing Measures
    • Consider restructuring the workplace to increase physical space between employees, as well as customers and other visitors. This may include installing plexiglass or other physical barriers, or removing some chairs or tables in break rooms and other common spaces to reduce the risk of too many employees congregating.
    • Host meetings virtually when possible, or limit the amount of people physically present.
    • If possible, stagger attendance or limit who can be at the workplace to “essential” employees and allow others to work remotely.
    • Stagger breaks to limit the amount of people in the break room or other common areas at any given time.
    • Discourage people from shaking hands, hugging, or otherwise coming into physical contact with other individuals (including customers and vendors). 
    • Limit business travel
    • Require customers to pay online or via a handsfree device to limit the exchange of money and credit cards
  • Safety Measures
    • Remind employees to engage in appropriate hygiene practices, including washing hands regularly, covering their mouths when they cough, not touching their eyes, nose, or mouth, etc.
    • Require employees to wear personal protective equipment (PPE) like masks and gloves when around other individuals, including employees, customers, and vendors.
    • Provide tissues, no touch receptacles, soap and water, hand sanitizer, and cleaning sprays/wipes to employees to help them keep their workspace clean. 
    • Be diligent about cleaning the workplace. Designate an employee(s) to clean high-touch areas throughout the day and remind employees to keep their workspace clean. 
  • Employee Screening Procedures
    • Employers have different options for screening employees during the pandemic that would not otherwise be legal under the Americans with Disabilities Act. Employers may take employees’ temperatures before they are allowed to enter the workplace, or may require employees to get tested for COVID-19 before coming to work. 
    • Employers may ask employees if they are exhibiting common symptoms of COVID-19, such as fever, cough, shortness of breath, or sore throat. Remember to check the CDC website continuously, as the symptoms continue to expand and evolve.
    • Send home any employee who is exhibiting signs of COVID-19 or have a temperature of 100.4 of higher.
    • However, it is important to consider the following:
    • There are specific notice requirements under California law that may be implicated if employers plan to take temperatures or require tests. Check with legal counsel before doing this. 
    • Taking temperatures or tests are not complete safeguards, since some individuals who have the virus may not experience fevers, and a negative COVID-19 test one day doesn’t mean the employee will not be infected the next day. 
    • If checking temperatures, it is recommended to designate a specific person(s) to do this, and maintain a confidential log. It is also recommended to get a contact-free thermometer to reduce the risk of exposure.
    • Non-exempt employees who are sent home early may need to be paid reporting time pay.
    • Non-exempt employees should be paid for time spent taking their temperature or COVID-19 tests if required by the employer.
    • Employers must adhere to privacy laws and keep all medical information confidential, and maintain medical files separate from personnel files.
  • Accommodating Employees
    • Some employees may have underlying health conditions that put them at greater risk of contracting the virus. These individuals may need to be accommodated under the ADA and FEHA or other applicable state laws.
    • Employees with mental health conditions that have been exacerbated by the pandemic may need to be accommodated. 
    • Employees who have child care issues may need to be accommodated under the Expanded Family Medical Leave Act or local ordinances.
    • Remember that a leave of absence is only a reasonable accommodation if there are no other accommodations available that would allow the employee to continue working. Consider various options to try to allow the employee to continue working, and engage with the employee to determine what the employee’s limitations are and how they may be accommodated.
  • Planning for Future Outbreaks
    • As the economy opens back up and people are permitted to return to work, the virus will continue to spread. Create a plan for if/when an employee, customer, or vendor notifies you that he/she has been infected. This should include determining how to inform employees while maintaining confidentiality; cleaning the workplace thoroughly and perhaps hiring a third-party cleaning service to conduct a deep-clean; informing vendors and customers of any temporary shutdown of the business; hiring temporary workers to continue operations if a portion of the workforce is out sick.
  • Remember to comply with all wage and hour laws, and avoid potential claims of discrimination by treating all employees equally, unless they request accommodation (i.e. don’t exclude individuals over 65 or other high-risk individuals from the workplace just because they are higher risk – wait until they ask for accommodations before assuming they need one)

Civil court closures will have lasting impact: Gerald Sauer’s article for The Daily Journal

by Gerald Sauer

COVID-19 has turned the world as we know it upside-down, but it has done quite a number on the civil court system. In its rush to close courts to protect public health, the California Judicial Council and the Los Angeles County courts have set civil litigants back to a point from which it will be difficult to recover.

Relegated to the back of the line behind “essential” matters such as criminal, delinquency, dependency, family and mental health matters, civil trials have effectively gone into la-la land. It could be years before people who have been injured see justice. Civil cases that would have been resolved in two years will now likely drag on for more than four years. The result will be not just ongoing financial hardship for people who have suffered real injuries and deserve to be restored to pre-injury economic status, but mental and emotional trauma that we’ll see playing out into the foreseeable future: higher levels of addiction, suicide, domestic violence and self-abuse.

Read full story on DailyJournal.com (subscription required)

COVID-19 data privacy could be a Pandora’s box

by Gerald Sauer

It has taken a global pandemic to finally move legislators in DC toward progress on consumer privacy issues. Despite an urgent need for a comprehensive legal framework to protect personal data, more than a year after it first began looking at a federal scheme, Congress has not managed to reach consensus on a framework such as the European Union’s GDPR or the California Consumer Privacy Act (CCPA). Now, calls from public health experts to implement a system of contact tracing of individuals infected with COVID-19, and a seat-of-the-pants Senate proposal, have put data protection into hyperdrive.

We’re at a critical juncture, with the health crisis driving us toward a quick fix that could jeopardize the broader public interest. It’s the perfect moment for Congress to put differences aside and enact comprehensive federal data privacy laws, while also addressing the unique challenges of data collection during the coronavirus pandemic. A powerful cure is needed for the country’s data privacy disease, not simply an interim coronavirus relief patch that could, as explained below, open a Pandora’s box of problems.

Read full story on DailyJournal.com (subscription required)

Celebrating Its 23rd Anniversary – S&W Promotes Three New Partners and Launches New Website

by Gerald Sauer

On the 23rd anniversary of its founding, Sauer & Wagner LLP is pleased to announce the promotion of Gregory Barchie, Amir Torkamani and Sonya Goodwin to Partner.  

Gregory Barchie has substantially litigated commercial, entertainment, real estate, employment, and intellectual property disputes in federal and state courts and in private arbitrations. Greg joined S&W in 2015 and has served as a member of the Board of Governors of the Beverly Hills Bar Association, President of the “Out of Court” section of the Beverly Hills Bar Association, and President of the Southern California Business Litigation Inn of Court. He successfully defended a guarantor on a multi-million-dollar loan case involving the “sham guaranty” doctrine and prevailed on several anti-SLAPP motions including against claims for breach of contract/lease in an environmental contamination case, and fraud and intentional interference with economic advantage in a dispute between a borrower and mortgage loan brokers.

Amir Torkamani, who joined S&W in June 2012, focuses on commercial, entertainment, real estate, employment, and intellectual property litigation and has substantial experience handling jury and bench civil trials in federal and state courts, as well as litigating disputes in private arbitrations. He was recognized for obtaining one of the Top 100 Jury Verdicts in California in 2019 and was named a Rising Star by Southern California Super Lawyers in 2013 – 2018. Amir’s successes include the favorable settlement of a multi-million-dollar real estate dispute involving return of a substantial security deposit after the tenant had failed to pay rent and substantially damaged the property, as well as a commercial lease dispute involving a tenant facing eviction and substantial interruption of a machining and product development company.
Amir received a Bachelor of Arts degree in political science and a Bachelor of Science degree in business administration, both at the University of California, Berkeley. He earned his J.D. from the University of Southern California.

Sonya Goodwin joined S&W at the end of 2019. She has focused her practice exclusively in the employment arena, counseling both employers and employees in a wide variety of employment issues including wage and hour issues, discrimination, harassment, retaliation, wrongful termination, defamation, intentional infliction of emotional distress and breach of contract, as well as conducting investigations of workplace issues. She serves on the Executive Committee of the Beverly Hills Bar Association’s Labor and Employment Law Section.

Sonya earned her Bachelor of Arts degree, in history and international studies, from the University of California, San Diego. She attended UCLA School of Law, where she received her J.D.

S&W also released its redesigned website as part of the celebration of its 23rd anniversary. The website is located at www.swattys.com.   

For Lawyers, Social Distancing Could Be the New Normal: Gerald Sauer’s article for Law.com

For legal professionals, this new virus has completely rewritten how business is done. Courthouses are closed, office buildings are empty and a lot of things that once were urgent have suddenly been put on indefinite hold.

by Gerald Sauer

The novel coronavirus pandemic is reshaping our world in ways large and small, from compulsive hand washing to take-out meals to home-schooling. As we’re all forced to shelter in place, we find ourselves connecting with others in ways we may not have known about (e.g., Zoom), and in ways we never truly appreciated (e.g., email, texting, messaging).

For legal professionals, this new virus has completely rewritten how business is done. Courthouses are closed, office buildings are empty and a lot of things that once were urgent have suddenly been put on indefinite hold. We no longer meet in person with clients, we’ve stopped going to court, and we can’t even enjoy collegial get-togethers to exchange business cards and referrals.

Read full story on Law.com [Subscription Required]

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