Re-Opening Your Business is Going to be a Process, Not a Ribbon Cutting

In my very first class in college – a political science lecture – the professor stated, “Where you stand depends on where you sit.” In other words, every position is relative to the circumstances presented. That phrase has stayed with me over the years, especially as my profession is based upon the representation of my clients’ various interests. Everything is relative. That includes your desire to re-open your business and/or your goal to get back to work. Here are some considerations that you should keep in mind, though, as you go through this process.

First, the overarching goal of any re-opening plan should be your workforce’s health and safety. It is not a competing interest; it is the primary interest from which everything else must follow. Obviously, no business is immune to economic realities, but generating revenue is only one element. The potential economic harm that could brought about by not focusing on health and safety could reduce revenue because of increased employee absenteeism due to sickness, curtailed operations if the office must be deep cleaned and/or temporarily closed due to illness, and potential liability from claims (governmental and/or individual) that the business was operated in a grossly negligent or reckless manner.

Second, re-opening your business is going to be a process, not a ribbon cutting. The prudent business will create an operational plan outlining the processes and strategies that will be employed to operate safely. This plan must be set forth in writing, distributed to all employees, and acknowledged in writing by each employee that it will be followed.

In preparing such a plan, you should keep several considerations in mind, which I generally outline below. In subsequent blogs, I will go through the various elements in greater detail.

 

Governmental Orders_GuidelinesGovernmental Orders/Guidelines

Regardless of where your business is located, there are likely several potentially applicable orders and/or guidelines that have been issued by local, state and federal governmental officials. Some of these orders/guidelines may be expiring, may get extended, or may be more restrictive than other guidelines. Regardless, you must evaluate which ones apply to your business as they do represent current thinking from governmental authorities regarding how business may safely operate.

 

Regulatory GuidanceRegulatory Guidance

You must stay up to date on guidance from the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), and the Equal Employment Opportunity Commission (EEOC), the United States Department of Labor, and from state and local authorities. Key guidance documents are found on these agencies’ respective COVID-19 specific web pages.

 

Current Health of Biz Ops

Current Health of your Business Operations

Not all businesses are the same, so you must honestly assess the operations of your business when deciding how best to operate going forward. Is working remotely working for your company? Then, it should be encouraged. If working remotely is not feasible for all employees, then who needs to come back, and how is that best accomplished (i.e., staggered work shifts, reconfigured office spaces, PPE needs, childcare issues, etc.)?

 

Health & Safety MeasuresHealth & Safety Measures

You will need to evaluate the health and safety challenges presented by your facilities, employees, and third parties (ex. vendors, customers, deliveries). OSHA, the CDC, and the EEOC have provided various guidance documents for businesses to plan and respond to COVID-19. These documents deal with PPE, social distancing, facility modifications, and employment concerns such as body temperature checks, dealing with illness, and Americans with Disabilities Act compliance in the context of pandemic preparedness. For areas that these guidance documents do not address (ex. the elevator in the lobby of your multi-story office building), you may need to involve a greater group of stakeholders beyond your office (e.g. building management, local health agencies) to develop workable measures.

 

Phased re-entry milestones

Phased Re-Entry Milestones

Just like many governmental orders and/or guidelines have phases, so too should your business plan for re-opening. You should have a clear understanding for the metrics that will need to be achieved to move from one phase to another. A clear framework for returning to more “normalized” operations will help ease the potential anxiety of employees, customers, and business partners as you go along. Additionally, you need to have a clear understanding of what might require you to phase back to an earlier position of safety, should circumstances change.

 

Communication strategyCommunication Strategy

What, how, when and where you communicate about your COVID-19 operation strategy cannot be an afterthought. In the short term, this is crisis management. Over the longer term, your communications will be your business voice of reason, projecting a well-earned level of confidence in the “health” of your business operations.

 

Risk mitigation and managementRisk Mitigation and Management

I previously wrote about the need for liability protection for essential businesses as they operate to provide essential services. However, liability protection will be needed by all businesses as they move to re-open, and waiting for statutory immunity that may never come is not a recommended strategy. In analyzing how you can re-open, you should also consider how things can go wrong. By identifying the risks of your “new normal,” you can work on developing strategies to help avoid and/or handle such risks. As the old saying goes, the best defense is a good offense.

Supplemental Paid Leave for Illness Related to COVID-19: A New Cost of Business for Large California Food Companies?

On Thursday, April 16, 2020, Governor Gavin Newsom signed Executive Order N-51-20 (the “Executive Order”), effective immediately. The Executive Order requires all food sector businesses that employee 500 or more “food sector workers” – whether in California or nationwide – to provide COVID-19 Supplemental Paid Sick Leave. The businesses subject to the Executive Order’s reach ranges from farm to table. The Executive Orders requires that supplemental paid sick leave be extended to workers at farms, suppliers, manufacturers, warehouses, distributors, fast food restaurants, delivery companies, and grocery stores. This coverage applies to all food sector workers who perform work for the hiring entity, regardless of whether they are deemed employees of that hiring entity. That’s right – this applies to independent contractors. And, it applies to both full and part-time workers.

Who Is Covered?

The Executive Order applies to Food Sector Workers and Hiring Entities.

A “Food Sector Worker” is any person who:

    • works in the canning, freezing and preserving industry;
    • works in the agricultural product processing industry;
    • works in facilities on a farm that prepare products for market;
    • has some other general agricultural occupation;
    • works for a Hiring Entity that operates a food facility as defined in Health and Safety Code Section 113789 (i.e., “an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level”); or
    • delivers food from a food facility for or through a Hiring Entity.

To be covered, the person must also be exempt from Governor Newsom’s March 20th executive order directing all individuals living in the State of California to stay home or at their place of residence, except as to maintain continuity of operations of the federal critical infrastructures (or any other statewide stay-at-home order), and that person must leave his/her home to perform work for or through a Hiring Entity.

A “Hiring Entity” means “any kind of private entity whatsoever” including a delivery or transportation company that has 500 or more employees in the United States.

What Leave Must Be Provided?

There are four categories of coverage provided by the Executive Order.

    • A Food Sector Worker who is employed full time or who worked, or was scheduled to work, at least forty (40) hours in each of the two weeks before the leave date are entitled to receive eighty (80) hours of leave.
    • A Food Sector Worker who does not meet these requirements, but otherwise has a normal weekly schedule, is entitled to leave equaling the total number of hours that he/she is normally scheduled to work over a two week period.
    • If a Food Sector Worker does not have a normal weekly schedule, then he/she is entitled to fourteen times (14x) the average number of hours the Food Sector Worker worked each day for or through the Hiring Entity in the six (6) months preceding the leave date.
    • If the Food Sector Worker has worked for the Hiring Entity less than six months, then he/she is entitled to fourteen times (14x) the average number of hours over the entire period that he/she has worked for the Hiring Entity.

When Can This Leave Be Taken?

A Food Sector Worker who is subject to a Federal, State or local quarantine or isolation order related to COVID-19, who is advised by a healthcare provider to self-quarantine due to COVID-19 related concerns, or who is prohibited from working by his/her Hinging Entity due to health concerns related to potential transmission of COVID-19 may take this supplemental leave.

What Is The Amount Of The Supplemental Paid Sick Leave?

Each hour of COVID-19 Supplemental Paid Sick Leave shall be paid at a rate equal to the highest of:

    • the Food Sector Worker’s regular rate of pay for the last pay period;
    • CA minimum wage; or
    • the applicable local minimum wage.

No Hiring Entity is required to pay more than $511 per day and $5,110 in the applicable two week leave period. However, a Hiring Entity will be exempt from the Executive Order if it pays an amount equal or greater than what is required by the Order.

What Must Hiring Entities Avoid?

A Hiring Entity cannot require a Food Sector Worker to use any other paid or unpaid leave, PTO, or vacation time before he/she uses the COVID-19 Supplemental Paid Sick Leave. A Hiring Entity cannot retaliate against or fire a Food Sector Worker who exercises his/her rights under the Executive Order. A Hiring Entity cannot delay leave when requested by a Food Sector Worker (assuming that he/she satisfies the conditions for such leave).

The California Labor Commissioner is empowered to enforce violations of the Executive Order, and any Food Sector Worker may file a complaint with the Labor Commissioner for alleged violations.

Stay Tuned

The COVID-19 Supplemental Paid Sick Leave requirement remains effective for the duration of any statewide stay-at-home order, and workers who are on leave when such order is rescinded are entitled to take the full amount of leave. How long the statewide stay-at-home order will be in effect is anyone’s guess at this point.

Additionally, on Thursday, April 23, 2020, the Labor Commissioner will publish a model notice of this new supplemental leave requirement. Notice must be conspicuously posted in the workplace, but if a Hiring Entity’s Food Sector Workers do not frequent a workplace (ex. delivery drivers), the Hiring Entity my disseminate the required notice by electronic means (ex. email).

Of particular interest is how this leave is to be paid for. While the Families First Coronavirus Response Act (which applies to food businesses with less than 500 employees) allows for businesses to obtain a tax credit, there is no similar provision in the Executive Order. Perhaps Governor Newsom or the state legislature will address this issue in the near future. Until, then, Hiring Entities should assume that they are footing the bill.

Wash Your Hands – A Worker’s Right

Among all the other rights afforded to Food Sector Workers under the Executive Order, the easiest one to comply with is that such workers must be allowed to wash their hands at least every thirty (30) minutes. Local public health agencies are empowered to enforce this health and safety measure.

 

 

Food Industry Leadership: Two Positive Examples Of Crisis Leadership

Happy Monday! Here’s a welcome relief from the emotional strain of the moment’s new normal of constant COVID-19 health alerts and infection updates: positive crisis leadership.

Xavier Unkovic is the Global President for Amy’s Kitchen. Last week, he shared the following message on LinkedIn to publicly support his team and food industry workers everywhere:

comic of essential food worker working food line
“NOT ALL HEROES WEAR CAPES” by Xavier Unkovic

As we all shelter in place, the idea of food and beverage companies as essential businesses has never been more apparent. Thank you to all the employees of these essential businesses who continue to work so that we may maintain a healthy social distance for ourselves and our communities.

Similarly, hats off to the Albertsons Companies, which is seeking to have its grocery store employees classified as first responders to ensure that they get the personal protection equipment and COVID-19 testing that they need to continue to keep our grocery stores in operation and supplying us with food. To read more about this grocer’s efforts, check out the story published on Business Insider.

The big takeaways here for all businesses and their leaders is that in moments of crisis, large or small, the best approach when all eyes are on you is to remain calm, stay positive, and demonstrate unwavering commitment to your values.

In closing, I leave you with the World War II motivational slogan that has endured a timeless appeal:

Keep Calm and Carry On
KEEP CALM – CARRY ON” by John Cooper is licensed under CC BY 2.0

The attorneys at Wendel Rosen LLP continue to wish you, your families, and your businesses well during this difficult time. We are not just attorneys “at law.” We’re also attorneys at your side, and we continue to help our clients every step of the way.

CDC Issues Interim Guidance for Essential Businesses to Address Workers with Suspected or Confirmed COVID-19 Exposure

On Wednesday, April 8, 2020, the Centers for Disease Control and Prevention (CDC) published new guidelines explaining how employees of essential businesses (or “critical infrastructure,” depending on which of the various local, state or federal orders/directives apply to your business) can return to work if they have been exposed to individuals with COVID-19 or otherwise suspect such exposure.  Exposure means being in a household or having close contact within six (6) feet of an individual with suspected or confirmed COVID-19.  The timeframe for such exposure extends back to forty-eight (48) hours before that individual became symptomatic.

This does not mean, though, that an employee may return to work if he or she is symptomatic or otherwise ill.  Rather, if the employee is displaying no symptoms, he or she may return to work with certain limitations.  According to the CDC guidance, precautions to be taken include:

  • Pre-Screening: Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.
  • Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.  If the employee becomes sick during the day, they must be sent home immediately.  Additionally, information on persons who had contact with the ill employee during the time the employee had symptoms (including 48 hours prior to symptoms appearing) should be compiled by the employer. Others at the facility with close contact of the employee during this time are considered exposed.
  • Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.
  • Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
  • Disinfect and Clean work spaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.

These precautions are guidelines; they are not the only measures that essential businesses should consider.  The CDC also recommends other steps that may be taken such as the pilot testing of face masks, working with facility maintenance staff to increase air exchanges in internal spaces, and staggering breaks to minimize potential congestion in break rooms.

Also, bear in mind that the CDC’s updated guidance does not supplant state or local guidance or orders.  For instance, SF Bay Area counties are recommending the use of face coverings when leaving home for essential travel and when persons are working at essential businesses.  Los Angeles Mayor Eric Garcetti has mandated that workers at essential business must wear masks and/or other appropriate face coverings.  Similarly, San Diego County has ordered all grocery store, pharmacy, drug store, convenience store or gas station employees who may have contact with the public to wear a face covering as described in the applicable California Department of Public Health guidance (which is not mandatory for employers, employees or the public).

If you have questions about how this CDC guidance or other state or local orders may apply to your business, the attorneys at Wendel Rosen LLP can assist you.

Shelter-in-Place Update: It’s Essentially Not Business As Usual For Bay Area Essential Businesses

Some businesses and individuals weren’t getting the message.  So, Alameda, Contra Costa, Marin, Santa Clara, San Francisco, and San Mateo counties and the City of Berkeley issued an updated Shelter in Place Order on March 31, 2020 (the “Order”).  This Order supersedes the March 16, 2020 shelter in place order directing all individuals to shelter in place (“Prior Shelter Order”). The Order also clarifies, strengthens, and extends certain terms of the Prior Shelter Order to increase social distancing and reduce person-to-person contact in order to further slow transmission of Novel Coronavirus Disease 2019 (“COVID-19”).

County health officials will be relying on the County’s respective sheriffs and chiefs of police to enforce the Order.  Violation of any provision of the Order constitutes an imminent threat to public health, is deemed a public nuisance, and is punishable by fine, imprisonment, or both.  (Not to mention that workers, as widely reported in the media, at certain businesses like Amazon and Whole Foods have shown that they will very publicly protest conditions that they believe are unsafe – another potential ground for liability.)   The Order will remain in effect until 11:59 pm on May 3, 2020 or until it is extended, rescinded, suspended, or amended in writing.

You can read the full text of the Order here, but for Bay Area food businesses, here’s what you need to know:

  • All Essential Businesses are “strongly encouraged to remain open.” Order, Section 5.
  • You are still an Essential Business, as defined by Section 13(f) of the Order.
  • Your employees are allowed to travel to your facility to perform work activities authorized by the Order, which is defined as an Essential Activity. Order, Section 13(a)(iv) and 13(i).
  • However, “Essential Businesses may only assign those employees who cannot perform their job duties from home to work outside the home.” Order, Section 5.

Food industry businesses, thus, can continue to operate under certain strict restrictions.

First, to the extent your employees can perform their job functions from home, they must do so.  “Businesses that include an Essential Business component at their facilities alongside non-essential components must, to the extent feasible, scale down their operations to the Essential Business component only.”  Order, Section 5.  In other words, if they can, employees must stay home and work from there.

Second, each business must prepare, post and implement a “Social Distancing Protocol” at their facility or facilities, as applicable, by no later than 11:59 pm on April 2, 2020.  Evidence of the protocol must be presented on demand to any authority enforcing the Order.  Order, Section 13(h).  Details regarding what constitutes an appropriate policy are set forth in subsection (h) of the Order, and a form policy is attached as Appendix A to the Order.  Be sure to follow this guidance, which lays out the minimum elements that you need for an appropriate Social Distancing Protocol.  (Go to the Order and scroll down to Appendix A.)

Third, “Social Distancing Requirements” are still in effect.  Maintain a minimum of six feet between employees, require employees to frequently wash their hands with soap and water for at least 20 seconds or use hand sanitizer, and cover coughs and sneezes with tissue, fabric (or, as a last resort, sleeves and elbows).  Above all else, no employee should leave his or her home if they are feeling sick, and certainly not if they have a fever or cough.

Should you have any questions regarding your food business’ preparation of a Social Distancing Protocol or compliance with the Order, Wendel Rosen’s Food and Beverage Practice Group attorneys are available to assist you.

Bay Area Food Manufacturers Can Comply with the Shelter in Place Order and Operate

The Shelter in Place Order, which was jointly issued by Alameda, Contra Costa, Marin, Santa Clara, San Francisco, and San Mateo counties and the City of Berkeley, is a very necessary step in addressing the health crisis presented by the COVID-19 Coronavirus pandemic.  While the Order is very detailed, a few food manufacturers have contacted me uncertain as to what the Order means for their operations.  Undeniably, the provision of food is essential, especially since we do not know how long we will be dealing with this challenging pandemic.  However, like anything legal in nature such as the instant Shelter in Place Order, the devil is in the details.  Here’s my take on whether the Order allows food manufacturers to remain in operation at this time:

First, the Order defines “Essential Businesses.”  There are various categories, several of which include those in the general food supply chain.  For instance, businesses that are in “[f]ood cultivation, including farming, livestock, and fishing,” (Order, Sec. 10(f)(iii)); that “provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals,” (Order, Section 10(f)(iv)); “[r]estaurants and other facilities that prepare and serve food, but only for delivery or carry out,” which includes schools (Order, Section 10(f)(xiii); and, “[b]usinesses that ship or deliver groceries, food, goods or services directly to residences,” (Order, Section 10(f)(xvi).

Second, retail food businesses (ex. grocery stores, farmers markets, convenience stores, etc.) are allowed to remain open.  Order, Sec. 10(f)(ii).  Obviously, with limited exceptions (ex. farmers markets) those businesses don’t make the products that they sell, so you need food manufacturers.  Unfortunately the Order does not directly address this part of the food supply chain.  Indirectly, though, it does:  “Businesses that supply other Essential Businesses with the support or supplies necessary to operate,” are allowed to remain open.  Order, Sec. 10(f)(xv).

Third, while food manufacturers may continue to operate, the Order places restrictions on such operations.  “All Essential Businesses are strongly encouraged to remain open. To the greatest extent feasible, Essential Businesses shall comply with Social Distancing Requirements….”  Order, Sec. 3.  Social distancing requirements include:

  • maintaining at least six-foot social distancing from other individuals,
  • washing hands with soap and water for at least twenty seconds as frequently as possible or using hand sanitizer,
  • coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and
  • not shaking hands.

Employees at Essential Businesses may leave their home to “perform work providing essential products and services at an Essential Business or to otherwise carry out activities specifically permitted in this Order, including Minimum Basic Operations.”  Order, Sec. 10(a)(iv).  “Minimum Basic Operations” are the “minimum necessary activities” to: (1) maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions, or (2) to facilitate employees of the business being able to continue to work remotely from their residences.

Finally, it is not business as usual.  The Order is to be interpreted with nothing but the public health in mind.  The Order is expressly intended “to ensure that the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, to slow the spread of COVID-19 to the maximum extent possible.”  Order, Sec. 1.  Violations of the Order are classified as misdemeanors punishable by fine, imprisonment, or both. (California Health and Safety Code § 120295, et seq.)

Accordingly, the takeaways from the Order, as I read it, are that food manufacturers may remain open with certain safety mechanisms in place.  To the extent that employees can work from home and perform their functions, they should do so.  To the extent that an employee cannot work from home (ex. a line operator), they can work at the food facility, but only to the extent that they have a six-foot zone of safety around themselves, they practice recommended hygiene protocols, and they do not come into physical contact with their co-workers.  Failure to faithfully comply with the Order will undoubtedly be dealt with severely should the offender’s actions and/or failures to act be discovered.  Discovery can happen by law enforcement and regulators, of course, but the most likely source would be from a business’ own employees.  Everyone is concerned, and if you ask someone to come to work while everyone else is sheltering in place, I would expect that those employees will be threatened and alarmed by any conduct that they perceive as unsafe.  Now is certainly not the time to put profit over people.

FDA Recalls FDA Menu Regulations

FDA watchers may have experienced whiplash last week as the FDA did an about face and postponed restaurant nutritional disclosure regulations that were years in the making.

In 2014, under the Obama Administration, the FDA enacted regulations that required chain restaurants to disclose “certain nutritional information for standard menu items” to “enable consumers to make informed and healthful dietary choices.” The FDA noted that “two thirds of adults and a third of the children in the United States are overweight or obese” and that “[m]any people do not know, or underestimate, the calorie and nutrient content of…foods from restaurants and similar retail food establishments.” Restaurants and other covered establishments were required to comply with these regulations no later than May 5, 2017. The National Restaurant Association had supported the FDA’s efforts to create a “nationwide federal menu labeling standard….”

But at the eleventh hour, on May 4, the Trump Administration’s FDA postponed the compliance date to May 7, 2018, so the FDA could “consider how we might further reduce the regulatory burden or increase flexibility while continuing to achieve our regulatory objectives….” The Trump FDA not only postponed the compliance date, but also reopened the comment period, giving the public/other interested parties 60 days to provide public comment.

One suspects the restaurant industry must feel like high school students whose teacher just announced that tomorrow’s midterm was just rescheduled from this Friday to probably never.