Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
With little notice or fanfare, San Diego County updated its emergency health order effective May 10, 2020 to provide additional protections for employees of essential and reopened businesses. The San Diego Health Order (Order) is the first in California to require essential businesses and those opened under California’s Resilience Roadmap (“reopened businesses”) to conduct daily temperature screenings of employees, as well as to develop and post specific plans for health screenings and to maintain social distancing and sanitation measures.
Social Distancing and Sanitation Protocol: The Order requires essential businesses that allow the public to enter a facility to prepare and post a “Social Distancing and Sanitation Protocol” (Protocol) on a form available from the county’s website. As an alternative, businesses may use a form required by another governmental entity that requires similar information. Essential businesses must post the Protocol near the entrance of each facility where the public and employees can easily see it. Businesses must also provide a copy of the Protocol to each employee.
Safe Reopening Plan: Reopened businesses must prepare and post a “Safe Reopening Plan” on a form available from the county on its website. The Safe Reopening Plan must be posted near the entrance of each facility where it can be easily seen by the public and employees. The Order also requires employers provide a copy of the Safe Reopening Plan to each employee working at the site.
Daily Temperature/Health Screenings: Besides requiring prescribed face coverings, the Order directs essential and reopened businesses to conduct temperature screening of all employees reporting to work. Employers must prohibit employees registering a temperature of 100 degrees or more from entering the workplace. Symptom screening (prohibiting employees from entering if they have a cough, shortness of breath, trouble breathing, or at least two of these symptoms: fever, chills, repeated shaking with chills, muscle pain, headache, sore throat or a new loss of taste or smell) may be used as an alternative only when a thermometer is not available.
Child Daycare and Child Care Providers Operational Restrictions: The San Diego County Health Order permits daycare centers and childcare providers to resume limited operations. Childcare must be carried out in limited groups of 12 or fewer children, groups of children may not mix, and childcare providers should remain solely with a designated group of children. Employees of childcare businesses do not have to wear face coverings while at the daycare or childcare facility. Childcare businesses must establish temperature screenings and prohibit employees, children and other members of the public with a fever of 100 degrees or more from entering the facility.
Questions Not Covered by the San Diego County Health Order: As with many things COVID-19-related, this updated Order leaves many questions unanswered. For example, the Order does not address whether employers may require or permit employees to measure their own temperature before arriving at the worksite or on arrival. However, the “Safe Reopening Plan” template published by the county indicates that a compliant plan requires employees to “have temperature taken upon reporting to work.” The Order also does not say whether employers may establish health screenings that include both temperature screens and symptom questionnaires. Finally, the Order provides no guidance on what temperature screening methods are required or recommended (e.g., oral thermometers, contact forehead thermometers, or non-contact infrared thermometers).
Next Steps: While many San Diego businesses are eager to reopen, it is important to consider how to do so safely and in a legally compliant way. For example, when implementing temperature check procedures, businesses should keep in mind employee privacy rights and notice requirements under the California Consumer Privacy Act, effective since January 2020 and aimed at enhancing privacy rights and consumer protection for California residents.
Businesses should consider the impact of the protocol they put in place. For example, what are the recording and record maintenance obligations associated with implementing employee temperature checks? Moreover, a business should consider the specifics around necessary screening equipment, number of temperature checks per workday and the methods associated with the screening. Additionally, in implementing these procedures, it is key to consider the specific industry as well as the practical realities of the workforce. Businesses should also consider the length of time employees should be excluded from the workplace should they register a temperature higher than 100 degrees.
Also of concern for employers are the variety of applicable laws, including the Americans with Disability Act, California’s Fair Employment and Housing Act (FEHA), and other EEO laws that must be considered when preparing to reopen operations in a manner that is consistent with San Diego’s County Health Order. Moreover, while the slow opening of childcare centers is welcome news to many parents, many employees will still need to manage caregiving obligations. Even once their employer has reopened, these employees may be eligible for protected leave under state and federal laws, including the Families First Coronavirus Response Act (FFCRA), the Family Medical Leave Act (FMLA), the California Family Rights Act (CFRA) and paid sick and safe time laws.
Finally and equally important, employers should consider not only their legal risks when implementing a return to work plan in compliance with San Diego’s Health Order, but also the impact of this return to work on their workforce culture. For many, particularly those in a vulnerable population, returning to work brings concerns that employers may be able to address by consistent communication and socially distanced outreach. Employee cooperation and confidence in a business’s efforts to comply with evolving Health Orders and CDC Guidelines while reopening is critical to implementing a return to work plan.