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Q&A

Re-opening my business

Whether a business is allowed to open depends on the county in which it is operating. The State of California currently restricts when and how businesses may reopen on a county-by-county basis. A tool on California’s Blueprint for a Safer Economy website can help businesses identify which State restrictions apply to each type of business in a specific county. Businesses should then check whether their county and/or city government has imposed additional restrictions that exceed State restrictions.

On August 28, 2020, California’s Statewide Public Health Officer issued an order replacing the Pandemic Resilience Roadmap with a new plan for reopening the State, called the Blueprint for a Safer Economy. Under the new plan, State restrictions on businesses vary by county depending on the number of new COVID-19 cases and the percentage of positive COVID-19 tests in the county. There are four tiers of restrictions, each with a name that reflects the prevalence of COVID-19 in the counties assigned to that tier:

  • Tier 1 – Widespread: The highest level of restrictions. Many businesses may only operate outdoors. Retail businesses are limited to 25% capacity. Offices are restricted to remote work. Bars breweries and distilleries where meals are not provided may not reopen. Additional restrictions apply.
  • Tier 2 – Substantial: Some businesses may only operate outdoors. Some businesses may operate indoors with modifications and a maximum capacity of 25% or 100 people. Offices are restricted to remote work. Bars breweries and distilleries where meals are not provided may not reopen. Additional restrictions apply.
  • Tier 3 – Moderate: Most businesses may open indoors with modifications, but many are restricted to a maximum capacity of 50% or 200 people, whichever is fewer. Additional restrictions apply.
  • Tier 4 – Minimal: The lowest level of restrictions. Most businesses may open indoors with modifications, some with a maximum capacity of 50%. Additional restrictions apply.

Businesses can locate their county’s current tier assignment and which of the associated restrictions affect that type of business by visiting the Blueprint for a Safer Economy website. It is important to check the county’s tier assignment regularly since under the rules of the tier system, a county could be moved to a different tier as often as every two to three weeks if there are dramatic fluctuations in the county’s COVID-19 testing results. The State assesses each county’s testing data weekly and updates tier assignments every Tuesday. An overview of the restrictions that apply to across different industries in each tier can be found here. Additional information is available at the California Department of Public Health’s Blueprint for a Safer Economy page.

In Los Angeles County, a Department of Public Health Order contains the restrictions on businesses that may reopen in the county. The order is revised often. Business can find the latest version by visiting the Department’s COVID-19 Health Officer Orders page and clicking on the button that reads “Reopening Safer at Work and in the Community Revised Order.” Paragraph 7 of the order lists businesses that must remain closed. Paragraphs 9 and 9.5 list businesses that may reopen and the requirements for doing so. The order also states, “violation of any provision of this order . . . is punishable by fine, imprisonment or both.”

As of October 6, the businesses that must remain closed according to paragraph 7 of L.A. County’s Department of Public Health Order include:

  • Lounges and nightclubs
  • Indoor dining at restaurants, bars, wineries, and distilleries.
  • Public entertainment venues, including movie theaters, concert venues, and festivals.
  • Family entertainment centers, including bowling alleys, arcades, and miniature golf
  • Indoor playgrounds
  • Indoor portions of museums, zoos, and aquariums
  • Hot tubs, steam rooms and saunas

Prior to reopening, businesses must also update their Injury and Illness Prevention Programs. This means that businesses must assess whether the potential risk of contracting COVID-19 constitutes a potential workplace hazard, and if so, implement safety measures to reasonably minimize the risk of employees’ possible COVID-19 exposure. Before reopening, all facilities must:

  • Perform a detailed risk assessment and create a site-specific COVID-19 prevention plan
  • Train employees on how to limit the spread of COVID-19. This includes how to screen themselves for symptoms and when to stay home.
  • Set up individual control measures and screenings
  • Put disinfection protocols in place
  • Establish physical distancing guidelines
  • Establish universal face covering requirements (with allowed exceptions) in accordance with CA Dept. of Public Health guidelines.
  • Prepare, implement, and post the required LA County Department of Public Health Protocol for the relevant industry. For industry specific details and protocols, click here.

Businesses can view the California Department of Health’s Employer Playbook as a guide to a safe reopening. The State of California has posted more detailed guidelines and requirements, organized by industry, on the California State COVID website, which can be found here. Scroll down to “Industry guidance” to view reopening guidance for various industries.

Updated October 2020.

Some of LA County’s Reopening Protocols are linked to below:

For more industry-specific updates, click here to visit LA County’s Reopening Safer at Work Homepage.

Updated October 2020.

Employers intending to resume normal operation should do so only after reviewing state and local requirements and should strictly observe health and safety recommendations.

Generally, employers have a legal obligation to maintain a safe workspace for their employees under federal and state health and safety regulations. Employers who are considering reopening should take additional precautions to ensure that they are not putting their employers at risk of contracting COVID-19. Please read our FAQ for more information on possible obligations an operating business may have to customers and employees during the pandemic.

Additional Helpful Links

Updated June 2020.

Operating a Business

Probably; though there are a few conditions. The Americans with Disabilities Act (“ADA”) limits what medical tests and screening businesses can require of their customers to enter the establishment, but there are exceptions to screen for conditions which can pose a direct threat to public health. Official guidance from the federal government has stated that temperature checks of employees are allowed under the ADA to screen for COVID-19. Though no official guidance has been provided for temperature testing of customers to screen for COVID-19, it is likely that use of temperature checks to screen customers for COVID-19 is also allowed.

In conducting temperature checks of customers, however, there are a few things to keep in mind:

  1. Businesses that implement temperature screening of customers will still need to implement any other safety and social distancing protocols that are mandatory.

  2. Any testing or screening must comply with antidiscrimination laws.
    - Testing should be performed consistently and enforced evenhandedly. For example, businesses cannot take the temperature of only elderly customers while exempting young customers. Additionally, businesses cannot arbitrarily turn away customers without offering to screen them if they offer to screen other customers.
    - Businesses that want to implement temperature checks should develop a clear plan and protocol for testing to ensure that the testing is conducted fairly, including what an appropriate temperature limit might be. While the CDC has included “fever” as a COVID-19 symptom, it does not define what temperature indicates fever for COVID-19. CDC rules for reportable illnesses, however, define fever as having a temperature of at least 100.4 °F.
    - Business owners should also have a plan for how to handle customers who refuse to comply with temperature checks and customers who fail the temperature screening.

  3. Businesses should establish protocol to ensure customer and employee safety when performing temperature checks.
    - This can include, but is not limited to, following the manufacturer’s directions for cleaning thermometers after each use, using no-contact thermometers, and making sure that the employees performing the checks have appropriate protective equipment.
    - Business owners should also take into consideration what measures may be appropriate to ensure social distancing while customers wait to have their temperature taken.
    - An important thing to keep in mind is that individuals may have contracted COVID-19 while remaining asymptomatic. Customer temperature screening alone cannot eliminate the risks associated with COVID-19.

  4. Businesses should be wary of collected data when conducting temperature screenings of customers.
    - Some no-contact and digital thermometers can collect and store biometric data. If a business uses one of these thermometers, it may need to post or otherwise give notice to customers about what information may be collected and what that information might be used for in order to comply with consumer privacy laws. Thermometers that cannot collect or otherwise retain information usually do not raise these privacy concerns, provided that the business does not keep records of tested temperatures. However, businesses should still be mindful of customer privacy and take steps to keep the specific results of any screen private.

  5. Businesses should provide notice to customers that temperature screening is required for entry.
    - This could be done by communicating with regular customers over email or social media and posting prominently the testing policy outside your establishment.
    - Businesses should also remind customers that because of asymptomatic transmission, they still run a risk of contracting COVID-19 and should practice social distancing when visiting the establishment.

Updated June 2020.

Probably yes, provided that businesses enforce any mandatory face mask policy consistently, fairly, and make reasonable accommodations for individuals with disabilities. Generally speaking, a business has the right to refuse service to customers when it has a legitimate business purpose for doing so, such as enforcing a policy designed to protect the health and safety of its employees or other customers. In enforcing those policies, however, businesses must still comply with antidiscrimination laws, such as the Americans with Disabilities Act (“ADA”). The State of California, County of Los Angeles, and City of Los Angeles have each issued public health orders requiring people to wear face masks in public, meaning it is likely permissible to require customers to wear face masks under California law. Official guidance from the federal government has stated that it is permissible under the ADA for businesses to require employees to wear face masks during the pandemic (provided that businesses reasonably accommodate individuals with disabilities). Though no official federal guidance has been provided on mandatory customer face mask policies, it seems likely that requiring customers to wear face masks is also allowed to prevent the spread of COVID-19 to employees and other customers.

In requiring customers to wear face masks, however, there are a few things to keep in mind:

  • Enforcement of any face mask policy must comply with state and federal antidiscrimination laws.
    Businesses cannot arbitrarily turn customers away nor can they enforce policies selectively against certain racial or other protected groups. Face mask policies should be in place, and preferably posted, prior to refusing entry to unmasked customers; policies should also be enforced consistently and evenhandedly.
    Businesses should also consider how they will handle noncompliant customers, including what, if any, alternative service could be offered to them.
  • Mandatory face mask policies for customers should specifically take into account individuals who may be unable to wear a face mask because of a disability.
    While the State of California, County of Los Angeles, and City of Los Angeles have issued public health orders requiring people to wear face coverings in public, each exempts certain individuals with disabilities. If a customer is unable to wear a face mask due to a disability, under the ADA, a business must make a reasonable accommodation for that customer unless it can demonstrate that doing so would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations. This could include modified services, such as curbside pickup, no-contact delivery, online service, or possible exemptions from any mask policy.
  • Before removing or denying service to a customer who refuses to wear a face covering, businesses should verify the customer does not fall within one of these categories:
    1. Persons age two years or under. These very young children must not wear a face covering because of the risk of suffocation, and children between the ages of 2 and 8 should use them but only under adult supervision to ensure the child can breathe safely and avoid choking or suffocation.
    2. Persons with a medical condition, mental health condition, or disability that prevents wearing a face covering. This includes persons with a medical condition for whom wearing a face covering could obstruct breathing or who are unconscious, incapacitated, or otherwise unable to remove a face covering without assistance.
    3. Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.
  • Businesses should also be cognizant of how they determine which customers may be in need of accommodations. The ADA generally prohibits businesses from asking customers for documented proof of their disability. Businesses should defer to customers’ representations of their disability and should avoid discussing or questioning customers in detail about the specifics of medical conditions.

  • Businesses should provide notice to customers that wearing a face mask is required for entry and that the business reserves the right to refuse entry for refusal to do so.
    Any notice to customers should also contain a statement about accommodation requests or possible exemptions to avoid potential ADA violations. For example, Delta Airlines includes the following language in its mandatory face mask policy: “Customers with unique mask requirements should bring the appropriate face covering that best meets their needs. Customers with underlying conditions that explicitly prevent the wearing of a face covering or mask are strongly encouraged to reconsider travel or should be prepared to complete a ‘Clearance-to-Fly’ process prior to departure at the airport. If you require this exemption, please arrive early to complete the process during check-in and avoid missing your flight – this process can take over one hour. Please arrive early to allow additional time…. Any false claims of a disability or health condition to obtain an exemption from wearing a mask or face covering may result in the suspension of travel privileges on any Delta flight for the duration of the mask/face covering requirement. Children under the age two, young children who cannot maintain a face covering and unaccompanied minors are exempt from the mask requirement and do not require a pre-travel clearance.”
    Businesses should also remind customers that wearing a face mask cannot eliminate the risk of possible COVID-19 transmission and customers should still practice social distancing when visiting the establishment.

Updated August 2020.

Generally, yes. Provided that a business enforces its policy consistently to avoid violating any antidiscrimination laws, it likely can refuse service to customers who exhibit symptoms of COVID-19. In fact, under OSHA (the Occupational Safety and Health Act), businesses have a general obligation to their employees to maintain a workspace free from recognized and serious hazards. At present, COVID-19 is considered to be a recognized and serious hazard. It is important that any standards for refusing service to a customer are applied uniformly. For example, the business’s standard of who “seems sick” should be objective and must apply evenly to every customer, regardless of race, color, religion, disability, sexual orientation, or national origin. Best practices of implementing such a policy would most likely include giving customers notice of the business’s policy to deny in-person service to customers exhibiting COVID-19 symptoms. It might be helpful to review, LA County’s sample notice to customers, which instructs customers to stay home if they are sick with a cough or fever. For more information on California’s antidiscrimination laws, click here, and for further COVID-19 information from the U.S. Department of Labor, click here.

Updated October 2020.

The answer is slightly different depending on whether it’s employees or customers who get sick. For customers, a business could potentially be liable for personal injuries when a customer with COVID-19 infects other customers in that business, IF the infected customers can prove that COVID-19 was transmitted to them at that business and if the business failed to take reasonable steps that would have prevented that transmission. (The fact that it might be difficult for someone to prove they contracted COVID-19 at a particular location does not change the standard of liability, but it could impact the likelihood that a claim would succeed.)

California employees, on the other hand, may be barred from asserting personal injury claims for monetary damages as workers’ compensation might be their exclusive remedy for occupational injuries and illnesses. California Governor Gavin Newson issued an Executive Order, which states that “any COVID-19-related illness of an employee shall be presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits” provided that:

  1. the employee tests positive within 14 days after the employee performed labor or services at the employee’s place of employment at the employer’s direction;
  2. the employee performed labor and tested positive on or after March 19, 2020;
  3. the employee’s place of employment was not the employee’s home or residence; and
  4. the employee’s diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.

This presumption that employees’ COVID-19-related illnesses are occupational injuries eligible for workers’ compensation, however, can be disputed and disproven by other evidence. Currently, this presumption is set to expire on July 5, 2020 and only applies to injuries occurring between March 19, 2020 and 60 days following the date of the executive order, which would fall on July 5, 2020, unless the executive order is extended. Standard workers’ compensation exceptions (such as a requirement that the employer have workers’ compensation coverage), limitations, and requirements would still apply. Even after the presumption created by the executive order expires, employers may still assert that an employee’s COVID-19 related illness that arises out of or in the course and scope of employment is covered by workers’ compensation and subject to the bar discussed above.

If not subject to the workers’ compensation bar, employees could sue employers for COVID-related illnesses, but to be successful would need to prove their infection/injury arose out of or in the course and scope of employment such that it was within the employers’ control and that some actions or inaction by the employer resulted in the injury.

It’s important to note that non-employees, such as independent contractors, who are not covered by workers’ compensation are not subject to the workers’ compensation bar. Ordinary workers’ compensation rules governing employees and non-employees still apply. If not subject to the workers’ compensation bar, it is possible independent contractors who are infected from a business’s customers could sue for COVID-19 personal injuries, IF they prove their transmission occurred in that business and if the business failed to take reasonable steps to prevent that transmission.

Even under workers’ compensation, if an employee can show that their illness was caused by the employer’s serious and willful misconduct, it could result in the “amount of compensation otherwise recoverable [being] increased [by] one-half” under Section 4553 of the California Labor Code. To prevail on such a claim, the infected employee would have to prove that the employer maliciously (not just negligently) engaged in such misconduct. Therefore, businesses should closely adhere to official public health guidelines provided by OSHA, CDC, state, county, and city guidance, and implement recommended safety measures so as to reduce the risk of transmission and discourage potential claims of willful misconduct as well as simple negligence.

Note that there may be additional protections for businesses if legislation passes providing additional liability protections for businesses.

Updated June 2020.

Potentially, although liability would depend on the specific circumstances. In California, those who own or control property have a duty exercise reasonable care to maintain their premises in a reasonably safe condition. Under general legal principles, a person who controls property should reasonably inspect the portions of the premises open to customers and take other measures appropriate for the risks involved. Furthermore, if a dangerous condition exists that would have been discovered by the exercise of reasonable care, the owner or operator has a duty to give adequate warning of or remedy it. If an owner or operator fails to maintain premises in a reasonably safe condition, the owner or operator could be liable for the resulting damages if that failure was a substantial factor in causing a customer’s injury.

If a customer who becomes sick with COVID-19 could successfully apply this standard to the current circumstances of the COVID-19 pandemic, they might assert that a business’s failure to screen employees for COVID-19 should result in premises liability, particularly if employee screening is required or recommended by public health officials. If such a claim were made, the infected customers would need to prove that COVID-19 was transmitted to them at that business and that the business failed to take reasonable steps that would have prevented that transmission. (The fact that it might be difficult for someone to prove they contracted COVID-19 at a particular location does not change the standard of liability, but it could impact the likelihood that a claim would succeed.)

Business owners should closely adhere to official public health guidelines provided by OSHA, CDC, state, county, and city guidance, and implement recommended safety measures so as to reduce the risk of transmission and discourage potential claims of negligence.

Note that there may be additional protections for businesses if legislation passes providing additional liability protections for businesses.

Please see other Questions and Answers about other issues that arise in employee testing.

Updated August 2020.

At this point, yes, provided that you enforce those social distancing policies consistently to avoid violating any antidiscrimination laws. In fact, in Los Angeles County, a Department of Public Health Order (here) provides that without a valid reason why a particular provision is not applicable to your business, you are required to implement and post a social distancing protocol consistent with the Order. The Order also states that “Violation of or failure to comply with this Order is a crime punishable by fine, imprisonment, or both.” LA County has prepared answers to businesses’ frequently asked questions about what type of social distancing measures they must implement (here). 

  • LA County essential businesses may find the requirements laid out in the County’s Social Distancing Protocol (here).
  • LA County retail businesses opening for in-person shopping may find the County’s new retail establishments’ social distancing protocol (here).
  • LA County warehousing, manufacturing, logistics businesses may find the County’s new industry-specific social distancing protocol (here).
  • LA County restaurants opening for in-person dining may find the County’s new social distancing protocol (here). Other Food facilities may find additional guidance (here).
  • LA County office workplaces may find the County’s new social distancing protocol for office worksites (here).
  • LA County hair salons and barbershops may find the County’s new social distancing protocol (here).

LA County has provided a sample Notice to Customers that businesses can use to alert customers of coronavirus risks and social distancing guidelines.

Updated August 2020.

“Price gouging” is an unlawful increase of prices during a declared state of emergency. To prevent sellers of goods and providers of services from taking advantage of consumers during a crisis, price gouging during a declared state of emergency is generally illegal in California.

Under California law, and extended by Governor Gavin Newsom’s Executive Order (N-44-20), until September 4, 2020, it is unlawful to sell certain items for a price more than 10% greater than the highest price charged by the seller for those items on February 4, 2020. Goods that are covered by price-gouging protections in California include: consumer food items or goods, goods or services used for emergency cleanup, emergency supplies, medical supplies, home heating oil, building materials, housing, transportation, freight, and storage services, or gasoline or other motor fuels, as well as any other materials previously designated by the U.S. Secretary of Health and Human Services as Scarce Materials or Threatened Materials pursuant to section 102 of the Defense Production Act. If a protected good was not offered by the seller on February 4, 2020, its price may not be increased by more than 50% greater than what the seller paid for it or what it cost for the seller to produce and sell it.

A violation of California’s price-gouging statute “is a misdemeanor punishable by imprisonment in a county jail for a period not exceeding one year, or by a fine of not more than $10,000, or by both that fine and imprisonment.” Price gouging is also considered an unlawful business practice under California’s Unfair Competition Law (Cal. Bus. & Prof. Code §17200 et seq.), which could expose a business to additional civil liability and penalties.

There are some exceptions to the price gouging rules if a business can prove one of the following:

  • The price increase is directly attributable to additional costs imposed on the seller by its suppliers (or in certain instances attributable to additional costs for labor or materials used to provide services during the state of emergency) and the price increase is no more than 10% greater than the total cost to the seller plus the markup customarily applied by the seller for that item in the usual course of business on February 4, 2020; or
  • The item was discounted on February 4, 2020 and the increase in price is no more than 10% greater than the price at which the seller ordinarily sold the item.

In addition to these protections, there is an active Executive Order (N-22-19) extending price gouging protections that were implemented in response to wildfires until December 31, 2020 in the following counties: Mendocino, Napa, Santa Barbara, Sonoma, Butte, Los Angeles, and Ventura.

California’s Office of Emergency Services keeps a list of active state and county price gouging restrictions (here). To report price gouging in Los Angeles County, you can fill out a complaint here or call (800) 593-8222.

Updated June 2020.

Employees

Yes, generally, wage and hour reductions are permissible. However, there are a number of exceptions and limitations. First, employers must pay employees at least the minimum wage required by California law, must notify affected employees within seven calendar days after the time of the changes, and pay employees the previous rate for hours already worked. The California Department of Industrial Relations has provided this form for employers to give employees notice of a reduction in wages (See here for the minimum wage in the City of Los Angeles and here for unincorporated areas in Los Angeles County.) Employers also should be mindful that issues may arise if a pay-cut changes an employee’s status from exempt to non-exempt. For example, non-exempt employees are eligible for overtime.

In addition, employers may not violate an employee’s employment contract. Before reducing the hours or wages of an employee, employers should review applicable employment contracts (which might be written or oral) to determine if wage or hour reductions are possible and how they might be implemented without violating the terms of any agreement.

If a business has received government loans under the Paycheck Protection Program (the “PPP”), it should also be aware that loan forgiveness under the PPP is reduced if employees who made less than $100,000 in annualized wages in 2019 receive a reduction in pay of more than 25% during the “covered period.” The U.S. Department of Treasury has defined some of the terms and calculations involved in the application (here).

In taking any action, employers must comply with federal and state antidiscrimination laws. These laws apply in implementing pay or hour reductions and in selecting which employees will be affected by pay cuts. Reducing wages is considered an “adverse employment action” that could give rise to claims of discrimination by any affected employee. Businesses generally must have a legitimate, nondiscriminatory reason for adverse employment actions taken against employees to comply with state and federal antidiscrimination laws. Employers should have a legitimate, nondiscriminatory reason for why wage or hour reductions are employed, as well as which employees are selected to have their wages or hours reduced.

Employers should advise employees that unemployment insurance benefits may be available to eligible employees whose hours are reduced due to COVID-19.

Updated August 2020.

No. Broadly speaking, workplace policies, including those implemented in response to COVID-19, should be applied equally, consistently, and fairly to all employees to avoid potential issues that might arise under state and federal antidiscrimination laws. For more information about implementing COVID-related policies among employees, read the information provided under the Question: “Can I make my employees wash hands/take temperature/get tested and provide me with information?”

Updated August 2020.

Employers are allowed to enact certain preventative measures to reduce the likelihood of COVID-19 transmission in the workplace, though different standards may apply to different measures since some measures may raise issues under the Americans with Disabilities Act (“ADA”) and the California Fair Housing and Employment Act (“FEHA”).

Employers may require infection control practices (such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal) without implicating the ADA, provided that these policies are enforced fairly and consistently. In fact, some handwashing and other disinfecting measures may be required in order to comply with city, county, and state public health orders, as well as existing workplace safety laws.

Other COVID-19 employee screening measures, however, may have ADA implications. The ADA limits the medical examinations and disability-related inquiries that employers may require of employees to examinations and inquiries that are “job-related and consistent with business necessity.” Generally, medical tests and related inquiries are job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:

  1. An employee’s ability to perform essential job functions will be impaired by a medical condition; or
  2. An employee will pose a direct threat due to a medical condition.

This reasonable belief “must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination.” Applying this standard to the COVID-19 pandemic, the Equal Employment Opportunity Commission (“EEOC”) has advised that ADA employers may take steps under the ADA to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. These measures may include taking employees’ temperatures, administering COVID-19 tests (to detect the presence of COVID-19), and asking employees about any COVID-19 symptoms and close contacts in the workplace (though employers may not ask whether the employees’ family members have had COVID-19 or related symptoms). The EEOC has cautioned employers, however, that COVID-19 antibody tests are impermissible medical examinations under the ADA because the Center for Disease Control and Prevention (“CDC”) has concluded that antibody test results “should not be used to make decisions about returning persons to the workplace.” Employers should look to the CDC, other public health authorities, and reputable medical sources to determine what COVID-screening is reliable, accurate, and consistent with the ADA standards. To view CDC guidance for Testing in Non-Healthcare Workplaces, click here.

When collecting COVID-related information from employees, employers should keep in mind their confidentiality obligations to employees under disability antidiscrimination laws. All information collected as a result of COVID-related inquiries and screening should be treated as confidential medical records in compliance with the ADA and FEHA.

For information from the California Department of Public Health related to responding to COVID-19 in the workplace, click here.

Updated October 2020.

Employees who have COVID-19 symptoms when they arrive at work or who develop COVID-19 symptoms during their shift should probably be sent home and not return to work until they have met CDC criteria to discontinue home isolation in consultation with a healthcare provider and state or local health department.

The Equal Employment Opportunity Office (“EEOC”) has advised that an employer can send home an employee with COVID-19 or related symptoms without violating the Americans with Disabilities Act (“ADA”). If an employee is sick or has COVID-19, removing them from the workplace might be necessary in order to comply with existing workplace safety laws and other public health orders, such as the LA County Public Health Emergency Quarantine Order as well as the Reopening Safer At Work And In The Community For Control Of COVID-19 revised Order.

Employers are required to maintain a work environment free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. Additionally, under Cal-OSHA guidelines, employers are required to implement an Injury and Illness Prevention Program. During the COVID-19 pandemic, employers must assess whether the potential risk of contracting COVID-19 constitutes a potential workplace hazard, and if so, implement safety measures to reasonably minimize the risk of employees’ possible COVID-19 exposure. Cal-OSHA also requires employers to report any serious injury, illness, or death occurring in any place of employment or in connection with employment to the local Cal-OSHA district office immediately. For COVID-19, the California Department of Public Health (“CDPH”) has advised that this includes inpatient hospitalizations and deaths among employees. CDPH recommends employers report serious injury, illness, and death, including hospitalization and death from COVID-19, even if work-relatedness is uncertain. In Los Angeles County, businesses are required to report “clusters,” defined as three or more cases within the workplace within a span of 14 days, to the LA County Department of Public Health.

Updated October 2020.

When employees develop symptoms associated with or have been exposed to COVID-19, the CDC, Cal-OSHA, California Department of Public Health, and LA County Department of Public Health generally recommend that:

  • Employees who have COVID-19 symptoms when they arrive at work or become sick during the day should immediately be separated from other employees, customers, and visitors and sent home. Employees who develop COVID-19 symptoms or have been exposed to COVID-19 outside of work should notify their supervisor and stay home. Sick employees should not return to work until they have met the criteria to discontinue home isolation and have consulted with a healthcare provider and state or local health department.
  • Employers should conduct an investigation to identify all close contacts associated with the workplace (both employees and non-employees who spent time at the site) who had exposure to the case during the infectious period.
    • Any contact who is symptomatic should immediately be considered a case and should be sent home to self-isolate and tested for COVID-19 and all asymptomatic close contacts should be required to self-quarantine for 14 days from exposure.
    • “Close contacts” are defined by LA County to include any individual within the workplace with the following exposures to a case while the case was infectious:
      • Presence within 6 feet of the case for more than 15 minutes, or
      • Contact with the case’s body fluids and/or secretions, such as being coughed or sneezed on, or sharing drinks or food utensils.
    • LA County considers symptomatic persons to be infectious from 2 days before symptoms first appeared until at least 10 days after their symptoms first appeared and 1 day after recovery (defined as no fever and reduction in other symptoms).
    • Asymptomatic persons who have tested positive for COVID-19 are considered infectious 2 days before the date of their first positive test until 10 days after that initial positive test.
  • Temporarily close the general area where the infected employee worked until cleaning is completed. Cleaning should be performed consistent with CDC and any other applicable guidelines.
  • Inform employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the ADA and the California Fair Employment and Housing Act (“FEHA”). Employers should not reveal personal identifying information about infected or exposed employees other than what is necessary to notify close contacts of their potential exposure.

When collecting COVID-related information from employees, employers should keep in mind their confidentiality obligations to employees under disability antidiscrimination laws. While the ADA regulates, and for the most part prohibits employee disability-related inquiries and medical examinations, the EEOC has indicated employers can ask all employees if they are experiencing COVID-related symptoms or have otherwise been exposed since COVID-19 poses a direct threat to others’ health and safety in the workplace. All information collected as a result of these COVID-related inquiries, however, should be treated as confidential medical records in compliance with the ADA and FEHA.

Updated August 2020.

The California Department of Public Health, using CDC guidance, has recommended that employees with or potentially exposed to COVID-19 return to the workplace based on the following factors:

  • Symptomatic Positive:
    • Who? Employees with symptoms who are laboratory confirmed to have COVID-19
    • When can they return? After at least 3 days (72 hours) have passed since recovery (no fever without the use of fever-reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath)); and at least 10 days have passed since symptoms first appeared.
  • Asymptomatic Positive:
    • Who? Employees who never had symptoms but are laboratory confirmed to have COVID-19
    • When can they return? After a minimum of 10 days have passed since the date of their first positive COVID-19 test. If they develop symptoms, use the same criteria for return to work as symptomatic positive cases.
  • Symptomatic Negative:
    • Who? Employees who had symptoms of COVID-19 but test result returned negative
    • When can they return? Use the same criteria for return to work as symptomatic positive cases.
  • Asymptomatic Negative:
    • Who? Employees who never had symptoms but were tested due to close contact with a laboratory-confirmed case patient and COVID-19 test results were negative
    • When can they return? Employees should quarantine at home for 14 days after the last known close contact with the case patient. Symptoms can develop even after testing negative within 14 days after exposure. Local health departments may consider allowing an earlier return to work only for an employee in a critical infrastructure industry in which the essential operations of the workplace would be compromised by quarantine of the employee and no alternate staff can perform the same role.
  • Symptomatic Untested:
    • Who? Employees who had symptoms of COVID-19 but were not tested
    • When can they return? Testing is highly recommended. If the employee cannot be tested, use the same criteria for return to work as symptomatic positive cases.
  • Asymptomatic Untested:
    • Who? Employees who had close contact to a laboratory-confirmed case patient at work, home, or in the community and do not have symptoms (or employees who refuse or are unable to be tested after close contact with a laboratory-confirmed case, despite recommendation for testing from a local health department or healthcare provider, and do not have symptoms).
    • When can they return? Employees should be quarantined at home for 14 days after the last known close contact with the case patient. Testing is highly recommended; if testing has not occurred, local health departments may consider allowing an employee who had close contact to a confirmed case to continue to work only in a critical infrastructure industry in which the essential operations of the workplace would be compromised by quarantine of the employee and no alternate staff can perform the same role. If they develop symptoms while in quarantine, the criteria for symptomatic positive cases applies.

To access the California Department of Public Health Employer Playbook, with more information on reopening procedures and COVID-19 prevention click here.

Updated October 2020.

In California, an employee’s COVID-related illness that arises out of their employment (at least for now) may be covered by workers’ compensation depending on the circumstances. If the illness is covered by workers’ compensation, that employee would most likely be barred from asserting personal injury claims for monetary damages against their employer for the same COVID-related injuries, including claims based on an employer’s failure to screen other employees for COVID-related symptoms. California Governor Gavin Newson issued an Executive Order that California employees’ COVID-related illnesses (occurring between March 19, 2020 and July 5, 2020) were presumed to have arisen out of and in the course of employment for the purposes of awarding workers’ compensation, provided that:

  • the employee tests positive within 14 days after the employee performed labor or services at the employee’s place of employment at the employer’s direction;
  • the employee performed labor and tested positive on or after March 19, 2020;
  • the employee’s place of employment was not the employee’s home or residence; and
  • the employee’s diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.

However, this presumption expired on July 5, 2020. There is pending legislature that could codify a similar presumption, but until new legislation is passed, there is no presumption of workers’ compensation eligibility for COVID-related illnesses contracted after July 5, 2020.

Even without the presumption created by the executive order or new legislation, employers may still assert that an employee’s COVID-related illness arising out of or in the course and scope of employment is covered by workers’ compensation and subject to the bar discussed above. Without the presumption, whether or not workers’ compensation applies to an employee’s COVID-related illness will depend on factors, such as the time, place, and circumstances in which COVID-19 was transmitted to the employee and how the employee’s work was a contributing cause to that transmission. Standard workers’ compensation exceptions (such as a requirement that the employer have workers’ compensation coverage), limitations, and requirements still apply.

If not subject to the workers’ compensation bar, employees could sue employers for COVID-related illnesses, but to be successful would need to prove their infection/injury arose out of or in the course and scope of employment such that it was within the employers’ control and that some actions or inaction by the employer resulted in the injury. It is possible that an employee could use an employer’s failure to screen employees for COVID-19 as the basis for a claim against that employer for the employee’s COVID-related illness, IF the failure to do so was a substantial factor in causing the employee’s infection/injury.

It’s important to note that non-employees, such as independent contractors, who are not covered by workers’ compensation are not subject to the workers’ compensation bar. Ordinary workers’ compensation rules governing employees and non-employees still apply. If not subject to the workers’ compensation bar, it is possible independent contractors could sue for COVID-related injuries, IF they prove that COVID-19 was transmitted to them at that business and it failed to take reasonable steps to prevent that transmission, which might include failure to screen its employees for COVID-19 if failure to do so was a substantial factor in causing the non-employee’s infection.

Even under workers’ compensation, if an employee can show that their illness was caused by the employer’s serious and willful misconduct, it could result in the “amount of compensation otherwise recoverable [being] increased [by] one-half” under Section 4553 of the California Labor Code. To prevail on such a claim, the infected employee would have to prove that the employer maliciously (not just negligently) engaged in such misconduct. Therefore, businesses should closely adhere to official public health guidelines provided by OSHA, CDC, state, county, and city guidance, and implement recommended safety measures so as to reduce the risk of transmission and discourage potential claims of willful misconduct as well as simple negligence.

Note that there may be additional protections for businesses if legislation passes providing additional liability protections for businesses.

Updated August 2020.

While fear of Coronavirus alone is not sufficient to qualify for paid leave, individuals who have an increased risk for severe illness from COVID-19 and are recommended to self-isolate by a health care provider or by a federal or state public health official to reduce their risk from COVID-19 infection are likely eligible for some paid leave. For businesses in California, these “high-risk” individuals may be covered by federal and/or state paid sick leave laws described below. In addition, employers generally may not discriminate or retaliate against workers who request or use available paid sick leave. A business may also have obligations to provide reasonable accommodations for a high-risk employee whose disability puts that employee at greater risk from COVID-19. Most California businesses would expose themselves to legal action if they were to fire an employee because of that employee’s age, medical condition, or for requesting or using accrued leave.

Updated August 2020.

According to the CDC, people of any age with certain underlying medical conditions are at increased risk for severe illness from COVID-19. These conditions include:

  • Chronic kidney disease; COPD (chronic obstructive pulmonary disease);
  • Immunocompromised state (weakened immune system) from solid organ transplant;
  • Obesity (body mass index of 30 or higher);
  • Serious heart conditions, such as heart failure, coronary artery disease, or cardiomyopathies;
  • Sickle cell disease; and
  • Type 2 diabetes mellitus

The CDC also provides a list of conditions that might put individuals at an increased risk for severe illness from COVID-19.

On June 25, 2020, the CDC removed the specific age threshold identifying older adults who are “high risk.” The CDC now warns that among adults, risk increases steadily as you age, and it’s not just those over the age of 65 who are at increased risk for severe illness. The California Department of Public Health’s guidance, however, still identifies individuals over 65 years of age as at high risk for serious COVID-related illness.

Updated August 2020.

Families First Coronavirus Response Act (“FFCRA”)

Under the federally-adopted Families First Coronavirus Response Act (“FFCRA”), from April 2—December 31, 2020, an eligible employee of a covered employer may qualify for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

  1. Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19
    • Duration of Leave: A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
    • Calculation of Pay: Employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in total (over a 2-week period).
  2. Has been advised by a health care provider to self-quarantine related to COVID-19
    • Duration of Leave: A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
    • Calculation of Pay: Employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in total (over a 2-week period).
  3. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis
    • Duration of Leave: A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
    • Calculation of Pay: Employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in total (over a 2-week period).
  4. Is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order or has been advised by a health care provider to self-quarantine related to COVID-19
    • Duration of Leave: A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
    • Calculation of Pay: Employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in total (over a 2-week period).
  5. Is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19
    • Duration of Leave: A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.
    • Calculation of Pay: Employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period).
  6. Is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
    • Duration of Leave: A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
    • Calculation of Pay: Employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in total (over a 2-week period).

The FFCRA’s paid sick leave and expanded family and medical leave provisions described above apply to private employers with fewer than 500 employees (as well as certain public employers). Note, small businesses are not exempt from providing leave for most of the reasons provided above, but small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.. The FFCRA paid sick leave is an additional benefit, meaning a business may not force an employee to use other leave before using FFCRA leave.

Updated August 2020.

California Paid Sick Leave

In addition to the FFCRA, high risk employees may be eligible for paid sick leave under California law, such as Section 246 of the Labor Code. California allows paid sick leave for employees’ absences due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee or the employee’s family member. California’s Labor Commissioner’s Office has clarified that preventative care may include COVID-19 self-quarantine if recommended by civil authorities. As a result, California essential and non-essential employees may be entitled to use available paid leave under “preventative care” provisions of California’s paid sick leave laws.

Once an employee has paid sick leave available, the employer must provide such leave and compensate the employee. Broadly speaking, under Section 246 of the California Labor Code, employees may accrue 1 hour of paid leave for every 30 hours worked, though employers may cap accrual at 48 hours and use at 3 days or 24 hours, whichever is greater, within a 12-month period. An employer may use a different accrual method (other than providing 1 hour per every 30 hours worked), provided that the accrual is on a regular basis so that an employee has no less than 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment or each calendar year, or in each 12-month period.

Employees may use their CA paid sick leave to supplement the amount they receive in FFCRA leave, up to the amount the employee would have normally earned during the period of sick leave. Standard paid sick leave exceptions, requirements, and limitations, such as those under Section 246 of the California Labor Code, would still apply, including applicable anti-retaliation provisions.

COVID-19 Supplemental Paid Sick Leave for Food Sector Workers

California also has an Executive Order (“Order”) authorizing COVID-19 Supplemental Paid Sick Leave for Food Sector Workers could also allow high-risk food sector workers to take paid leave when advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19. This additional protection applies to hiring entities with 500 or more employees nationwide.

  • Under the Order, food sector workers are defined as workers who:
    • Perform work in the food sector as either a farm worker, or anywhere else in the retail food supply chain, including pick-up, delivery, supply, packaging, retail, or preparation;
    • Perform work for the business outside the home; AND
    • Are exempt as Critical Infrastructure workers from any statewide stay-at-home order.
      Note that food sector workers do not have to be classified by the hiring entity as an employee to be covered by the Order.
  • Food sector workers are entitled to the following duration of COVID-19 Supplemental Paid Sick Leave:
    • 80 hours for full-time workers and those working an average of 40 or more hours per week in addition to any other accrued paid sick leave.;
    • For part-time workers with a normal weekly schedule, the number of hours the worker is normally scheduled to work over two workweeks;
    • For part-time workers with variable schedules, 14 times the average number of hours they worked each day over a six-month period (or for those workers who have worked fewer than six months, over the entire period of their employment)
  • While on COVID-19 Supplemental Paid Sick Leave, food sector workers are eligible to receive:
    • The highest of regular rate of pay for last pay period;
    • State minimum wage; or
    • Local minimum wage (which may not to exceed $511 per day and $5,110 in total)

Note, a hiring entity may not deny a worker COVID-19 Supplemental Paid Sick Leave based solely on a lack of certification from a healthcare provider. Under the Order, a food sector worker is entitled to take COVID-19 Supplemental Paid Sick Leave immediately upon the worker’s oral or written request—it does not condition leave on medical certification.

Under the Order, hiring entities must display a poster prepared by the Labor Commissioner about these new protections for food sector workers where workers can easily read it. If workers do not frequent a physical workplace, it may be disseminated to workers electronically.

California’s Labor Commissioner’s Office has prepared a chart illustrating the differences between Federal and California Paid Sick Leave and how they apply to COVID-related illnesses.

Updated August 2020.

In addition to the paid leave provisions and other protections that might be available, in some circumstances, a high-risk employee whose disability puts that employee at greater risk from COVID-19 may be entitled to a “reasonable accommodation” under the Americans with Disabilities Act (“ADA”), absent undue hardship to the employer. (Note that what constitutes a “reasonable accommodation” during a global pandemic may differ from what would constitute a “reasonable accommodation under more normal circumstances.) Pregnant employees might also separately qualify for accommodations under the Pregnancy Discrimination Act (“PDA”) if employers accommodate other employees who are similar in their ability or inability to work. Both the ADA and PDA cover private employers with 15 or more permanent employees. Employees 40 years old and older are protected from discrimination because of their age under federal law, though the Age Discrimination in Employment Act (“ADEA”) has no corresponding requirement for reasonable accommodation of older workers. The ADEA applies to employers with 20 of more permanent employees.

State Antidiscrimination Laws

In addition to complying with applicable federal antidiscrimination laws, California employers must also comply with state antidiscrimination laws, such as the California Fair Employment and Housing Act, Cal. Gov. Code § 12940, which applies to California employers with five or more employees.

Updated August 2020.

In California, an employee’s COVID-related illness that arises out of their employment is likely (at least for now) to be covered by workers’ compensation. If the illness is covered by workers’ compensation, that employee would most likely be barred from asserting personal injury claims for monetary damages against their employer for the same COVID-related injuries. California Governor Gavin Newson issued an Executive Order that California employees’ COVID-related illnesses (occurring between March 19, 2020 and July 5, 2020) were presumed to have arisen out of and in the course of employment for the purposes of awarding workers’ compensation, provided that:

  1. the employee tests positive within 14 days after the employee performed labor or services at the employee’s place of employment at the employer’s direction;
  2. the employee performed labor and tested positive on or after March 19, 2020;
  3. the employee’s place of employment was not the employee’s home or residence; and
  4. the employee’s diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.

However, this presumption expired on July 5, 2020. There is pending legislature that could codify a similar presumption, but until new legislation is passed, there is no presumption of workers’ compensation eligibility for COVID-related illnesses contracted after July 5, 2020.

Even without the presumption created by the executive order or new legislation, employers may still assert that an employee’s COVID-related illness arising out of or in the course and scope of employment is covered by workers’ compensation and subject to the bar discussed above. Without the presumption, whether or not workers’ compensation applies to an employee’s COVID-related illness will depend on factors, such as the time, place, and circumstances in which COVID-19 was transmitted to the employee and how the employee’s work was a contributing cause to that transmission. Standard workers’ compensation exceptions (such as a requirement that the employer have workers’ compensation coverage), limitations, and requirements still apply.

If not subject to the workers’ compensation bar, employees could sue employers for COVID-related illnesses, but to be successful would need to prove their infection/injury arose out of or in the course and scope of employment such that it was within the employers’ control and that some actions or inaction by the employer resulted in the injury.

It’s important to note that non-employees, such as independent contractors, who are not covered by workers’ compensation are not subject to the workers’ compensation bar. Ordinary workers’ compensation rules governing employees and non-employees still apply. If not subject to the workers’ compensation bar, it is possible independent contractors who are infected from a business’s customers could sue for COVID-19 personal injuries, IF they prove their transmission occurred in that business and if the business failed to take reasonable steps to prevent that transmission.

Even under workers’ compensation, if an employee can show that their illness was caused by the employer’s serious and willful misconduct, it could result in the “amount of compensation otherwise recoverable [being] increased [by] one-half” under Section 4553 of the California Labor Code. To prevail on such a claim, the infected employee would have to prove that the employer maliciously (not just negligently) engaged in such misconduct. Therefore, businesses should closely adhere to official public health guidelines provided by OSHA, CDC, state, county, and city guidance, and implement recommended safety measures so as to reduce the risk of transmission and discourage potential claims of willful misconduct as well as simple negligence.

Note that there may be additional protections for businesses if legislation passes providing additional liability protections for businesses.

Updated August 2020.

In California, an employee’s COVID-related illness that arises out of their employment is likely (at least for now) to be covered by workers’ compensation. If the illness is covered by workers’ compensation, that employee would most likely be barred from asserting personal injury claims for monetary damages against their employer for the same COVID-related injuries. California Governor Gavin Newson issued an Executive Order that California employees’ COVID-related illnesses (occurring between March 19, 2020 and July 5, 2020) were presumed to have arisen out of and in the course of employment for the purposes of awarding workers’ compensation, provided that:

  1. the employee performed labor and tested positive on or after March 19, 2020;
  2. the employee’s place of employment was not the employee’s home or residence; and
  3. the employee’s diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.

However, this presumption expired on July 5, 2020. There is pending legislature that could codify a similar presumption, but until new legislation is passed, there is no presumption of workers’ compensation eligibility for COVID-related illnesses contracted after July 5, 2020.

Even without the presumption created by the executive order or new legislation, employers may still assert that an employee’s COVID-related illness arising out of or in the course and scope of employment is covered by workers’ compensation and subject to the bar discussed above. Without the presumption, whether or not workers’ compensation applies to an employee’s COVID-related illness will depend on factors, such as the time, place, and circumstances in which COVID-19 was transmitted to the employee and how the employee’s work was a contributing cause to that transmission. Standard workers’ compensation exceptions (such as a requirement that the employer have workers’ compensation coverage), limitations, and requirements still apply.

If not subject to the workers’ compensation bar, employees could sue employers for COVID-related illnesses, but to be successful would need to prove their infection/injury arose out of or in the course and scope of employment such that it was within the employers’ control and that some actions or inaction by the employer resulted in the injury.

It’s important to note that non-employees, such as independent contractors, who are not covered by workers’ compensation are not subject to the workers’ compensation bar. Ordinary workers’ compensation rules governing employees and non-employees still apply. If not subject to the workers’ compensation bar, it is possible independent contractors who are infected from a business’s customers could sue for COVID-19 personal injuries, IF they prove their transmission occurred in that business and if the business failed to take reasonable steps to prevent that transmission.

Even under workers’ compensation, if an employee can show that their illness was caused by the employer’s serious and willful misconduct, it could result in the “amount of compensation otherwise recoverable [being] increased [by] one-half” under Section 4553 of the California Labor Code. To prevail on such a claim, the infected employee would have to prove that the employer maliciously (not just negligently) engaged in such misconduct. Therefore, business owners should closely adhere to official public health guidelines provided by OSHA, CDC, state, county, and city guidance, and implement recommended safety measures so as to reduce the risk of transmission and discourage potential claims of negligence.

Note that there may be additional protections for businesses if legislation passes providing additional liability protections for businesses.

Updated August 2020.

At this point most authorities would say that employers are required to maintain a work environment free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. Additionally, under Cal-OSHA, employers are required to implement an Injury and Illness Prevention Program. During the COVID-19 pandemic, employers must assess whether the potential risk of contracting COVID-19 constitutes a potential workplace hazard, and if so, implement safety measures to reasonably minimize the risk of employees’ possible COVID-19 exposure. Establishing routine cleaning procedures and disinfection protocols are among Cal-OSHA’s recommendations for employer compliance with workplace safety laws during the COVID-19 pandemic.

In addition to existing law, businesses are most likely required to implement some cleaning procedures as a result of complying with applicable city, county, and state public health orders. California statewide industry guidance states that all facilities must put disinfection protocols in place prior to reopening. In Los Angeles County, a Department of Public Health Order (here) provides that without a valid reason why a particular provision is not applicable to a business, businesses are required to implement and post a social distancing protocol consistent with the Order, which includes cleaning and disinfecting requirements that are found in LA County’s industry-specific reopening protocols. The Order also states that “Violation of or failure to comply with this Order is a crime punishable by fine, imprisonment, or both.”

For California Department of Public Health guidance on cleaning, click here.

Updated October 2020.

Yes. The California Department of Public Health (“CDPH”) and Los Angeles County have developed protocols for businesses reopening in different industries. For those businesses in Los Angeles, the LA County Department of Public Health Order (here) provides that without a valid reason why a particular provision is not applicable, reopening businesses are required to implement and to post the LA County Reopening Protocol applicable to their industry. This includes office worksites, warehouses, restaurants and other food establishments, and gyms and fitness centers. The County Order also states that “Violation of or failure to comply with this Order is a crime punishable by fine, imprisonment, or both.” CDPH orders and guidance, such as the Guidance for the Use of Face Coverings, may also apply. Additional facilities within each establishment, such as stores, gyms, and restaurants located in an office, must be operated in accordance with current orders and guidance for those facilities. Businesses planning to reopen in LA County should carefully review and follow the applicable County reopening protocol and state industry guidance. Businesses located outside of LA County should also follow guidance applicable to the county in which they operate.

A California business that is planning to reopen should also remember that, under Cal-OSHA, employers are required to implement an Injury and Illness Prevention Program. This is not a new law, but during the COVID-19 pandemic employers must assess whether the potential risk of contracting COVID-19 constitutes a potential workplace hazard, and if so, implement safety measures to reasonably minimize the risk of employees’ possible COVID-19 exposure. To comply with existing law, California businesses must perform a detailed risk assessment and implement a site-specific protection plan before opening their doors. More specifically, California statewide guidance recommends that reopening businesses:

  1. Perform a detailed risk assessment and create a site-specific protection plan
  2. Train employees on how to limit the spread of COVID-19. This includes how to screen themselves for symptoms and when to stay home.
  3. Set up individual control measures and screenings
  4. Put disinfection protocols in place
  5. Establish physical distancing guidelines.

Updated August 2020.

Possibly. With respect to acts or remarks directed toward customers or other third parties, California law prohibits business establishments from discriminating against or harassing people based on a protected characteristic, and a business is responsible for actions that are taken by an employee who has the authority to act on behalf of that business. Even in circumstances in which an employee does not act with the authority of the business, the business might still be vicariously liable for an employee’s wrongful conduct if that conduct falls within the “scope of employment.” In California, the “scope of employment” is broadly construed and would likely include actions associated with an employee’s general work responsibilities even if those actions are prohibited by the employer.

With respect to acts or remarks made in the workplace, California law requires that employers “take reasonable steps to prevent and correct wrongful (harassing, discriminatory, retaliatory) behavior in the workplace.” While all California business are covered under the California Fair Employment and Housing Act (“FEHA”), the FEHA places additional requirements on businesses with five or more employees including that such Employers must create prevention policies which:

  • List all protected categories under the FEHA*;
  • Allow employees to report to someone other than a direct supervisor;
  • Instruct supervisors to report all complaints;
  • State that all complaints will be followed by a fair, complete and timely investigation;
  • State that the employer will maintain confidentiality to the extent possible;
  • State that remedial action will be taken if any misconduct is found;
  • State that employees will not be retaliated against for complaining or participating in an investigation; and
  • State that supervisors, co-workers, and third parties are prohibited from engaging in unlawful behavior under the FEHA

* (Protected categories include: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age for individuals over forty years of age, military and veteran status, and sexual orientation.)

Updated August 2020.

Yes. Under the California Fair Employment and Housing Act (“FEHA”), even offhand or stray remarks made by non-supervisor employees can be used as evidence to prove discriminatory intent by an employer. These protections are not altered by the current crisis, but there have been a number of articles that suggest even offhand comments or jokes related to COVID-19 that intentionally or arbitrarily discriminate against a protected group may have legal consequences in employment discrimination cases.

Updated August 2020.

Yes. In most cases, employees are protected in what they post on social media. However, racist and other bigoted remarks do not enjoy “free speech” protection. Employers typically have the right to discipline employees for such remarks, particularly if they rise to the level of creating a hostile work environment for other employees.

Updated August 2020.

Yes. Under the California Fair Employment and Housing Act (“FEHA”) an employer may be liable for negligent failure to take steps to prevent harassment of employees by non-employees such as customers, vendors, delivery personnel, and other third parties. The FEHA also requires employers to inform employees of complaint procedures and to respond to complaints in a timely manner, as confidentially as possible, and with an impartial investigation.

Updated August 2020.

Landlords and Rent

Yes, but only to some degree. The Executive Order issued (and recently extended) by Governor Gavin Newsom that prohibits a landlord from initiating proceedings or otherwise taking steps to evict a tenant for nonpayment of rent before September 30, 2020, (if the tenant demonstrates that the inability to pay rent is due to COVID-19) applies to both residential and commercial tenants. Los Angeles County has also imposed a temporary Eviction Moratorium through September 30, 2020 that provides that landlords have the same rights and obligations to both residential and commercial tenants. However, each city in Los Angeles County has the ability to write separate rules for tenants surrounding the temporary eviction Moratorium. The City of Los Angeles approved an Ordinance that provides additional protections and that Ordinance does make some distinctions between commercial and residential tenants. The Los Angeles City Ordinance prohibits evictions if a commercial tenant is unable to pay rent due to circumstances related to the COVID-19 pandemic until 3 months after the end of the “Local Emergency Period” as declared by the Mayor. Residential tenants have protections from eviction that are somewhat broader and extend for 12 months. Landlords outside of the City of Los Angeles may look to the city-by-city rules that can be found at https://dcba.lacounty.gov/noevictions/.

Also, while both residential tenants and commercial tenants with fewer than 10 employees have 12 months from the end of the County Moratorium to repay rent that was not paid during the Moratorium, that repayment period is reduced from 12 months to 6 months for commercial tenants with 10 or more but less than 100 employees. Furthermore, commercial tenants that are multi-national, publicly traded, or have more than 100 employees are excluded from the County Moratorium protections.

Also, there are rent freeze obligations that Los Angeles County landlords have to residential tenants in particular circumstances that would not apply to commercial tenants.

Updated August 2020.

An Executive Order issued (and recently extended) by Governor Gavin Newsom prohibits a landlord from initiating proceedings or otherwise taking steps to evict a tenant (including commercial tenants, such as a business or commercial enterprise renting or leasing a structure used for business purposes) for nonpayment of rent before September 30, 2020, if the tenant demonstrates that the inability to pay rent is due to COVID-19. The Order also prohibits landlords from charging late fees, provided that the tenant provides notice.

The City of Los Angeles, approved an Ordinance that provides additional protections and prohibits commercial evictions (if the tenant is unable to pay rent due to circumstances related to the COVID-19 pandemic) until 3 months after the end of the “Local Emergency Period” as declared by the Mayor.

A ban on commercial evictions has been in place in unincorporated areas of Los Angeles County since March 19, 2020 and will last at least until September 30, 2020, with the potential for extension.

Although these orders and ordinances prohibit eviction during the moratorium period, tenants still have an obligation to pay any rent that is owed following the end of the moratorium. Rent deferral rules are different in different cities, counties and also vary based on the number of employees a business has, so businesses will need to confirm what rules apply to them and when any unpaid rent will be due. In the City of Los Angeles, outstanding rent for commercial tenants must be paid within three months of the end of the Local Emergency Period.

If the business has been financially affected by COVID-19 and is located in the City of Los Angeles, it should notify its landlord no later than seven days after rent is due. Businesses can use the form found here as a guide to inform their landlord that the business will not be paying rent as a result of financial challenges related to COVID-19.

If the business is located in an incorporated city with its own moratorium, such as Santa Monica, Beverly Hills, or Long Beach, check here to access information about their rent moratoria. Please note that the orders may vary from city to city.

Updated August 2020.

During the current COVID pandemic, landlords may still collect rent, but there are limitations on their ability to take action if rent is not received. An Executive Order issued (and extended) by Governor Gavin Newsom allows local governments to impose commercial and residential eviction moratoria to protect tenants who are unable to pay their rent due to the COVID-19 pandemic, through March 31, 2021. Los Angeles County imposed a temporary Eviction Moratorium that was recently extended through October 31, 2020. However, each city in Los Angeles County has the ability to write separate rules for tenants surrounding the temporary Eviction Moratorium. The City of Los Angeles, for example, approved its own Ordinance. Landlords outside of the City of Los Angeles may look to the city-by-city rules that can be found here. Landlords may not charge or try to collect any new passthroughs, interest, or late fees for unpaid rent during the Moratorium; and they may not harass or intimidate tenants who exercise these rights.

While these moratoria temporarily prohibit evictions for nonpayment, they do not eliminate tenants’ obligations to pay rent. At the end of the applicable moratorium period, commercial tenants will have a set period of time to repay outstanding rent. For example, the LA County Moratorium provides residential tenants and commercial tenants with 9 or fewer employees up to 12 months following the end of the Moratorium Period to repay any past due payments. Commercial tenants with 10 but fewer than 100 employees have up to 6 months following the end of the Moratorium to pay back any past due rent in equal payments unless other arrangements are made. (Note, the City of Los Angeles shortened the repayment period for all commercial tenants to 3 months following the end of its Moratorium. Other cities’ rules can be found here).

The Tenant, Homeowner, and Small Landlord Relief and Stabilization Act of 2020 (AB 3088), passed by the California Legislature and signed into law by Governor Gavin Newsom at the end of August, 2020, prohibits a landlord from evicting a residential tenant for nonpayment of rent or other charges that came due between March 1, 2020 and August 31, 2020, provided that the tenant declares that the inability to pay rent is due to COVID-19-related financial distress (See qualifying financial distress here). If a tenant pays 25 percent of the rental payments that come due between September 1, 2020 and January 31, 2021 on or before January 31, 2021 and submits a declaration of COVID-19-related financial distress attesting to decreased income or increased expenses due to the COVID-19 pandemic, the tenant cannot be evicted for the nonpayment of rent during that period.

For the period between October 1, 2020 and January 31, 2021, residential tenants in Los Angeles County must comply with the certification requirements established in AB 3088 for eviction protection as discussed above. However, each city in Los Angeles County had the ability to write separate rules for tenants surrounding the temporary eviction Moratorium prior to the passage of AB 3088. Under AB 3088, the local eviction moratoria rules adopted in response to the COVID-19 pandemic may remain in place if they expire before January 31, 2021. Local rules that are extended, renewed, or newly adopted cannot take effect prior to February 1, 2021.

In sum, under AB 3088, a residential tenant in California cannot be evicted prior to February 1, 2021 for the non-payment of rent, during the period ranging from March 1, 2020 to January 31, 2021, provided the tenant: (1) declares the inability to pay rent due to COVID-19-related financial distress; and (2) prior to February 1, 2021, pays at least 25 percent of rental payments missed that would have been due during the period of time ranging from September 1, 2020 to January 31, 2021. Landlords may also require "High-income” residents, as defined in AB 3088, to provide documentation of their COVID-19-related hardship through a specific procedure.

Additionally, tenants who do not qualify under AB 3088 may be protected from eviction until January 1, 2021 under the September 4, 2020 Centers for Disease Control and Prevention Order with proper declaration.

While AB 3088 temporarily prohibits evictions for nonpayment, it does not eliminate tenants' obligations to pay rent. Beginning March 1, 2021, landlords may bring action in small claims court to recover COVID-19 rental debt. The small claims court has jurisdiction in any action for recovery of COVID-19 rental debt regardless of the amount demanded. City and County ordinances may not permit a tenant a period of time that extends beyond March 31, 2022, to repay COVID-19 rental debt; keep an eye out for future provisions in Los Angeles County regarding repayment periods.

So, even though a landlord still has the right to collect rent, the landlord’s ability to enforce its rights to collect that rent during the eviction moratorium is quite limited. Ultimately, landlords should have claims for unpaid rent, but the question of when and how those claims may be brought and enforced will likely depend on the length of the current crisis and whether there is future legislation. The specific requirements and limitations vary, depending on whether the lease is for commercial or residential property and the city in which the property is located.

Updated October 2020.

Contracts and Obligations

It depends. In general, a purchase order made by a business and accepted by a seller constitutes a binding contract. If a business cancels or modifies that purchase order without the seller’s agreement and there is not a legal defense available to the business, the business can be held liable for breach of contract. Of course, a business may successfully negotiate a change to the purchase order with the seller and avoid liability. (If a purchase order is $500 or larger then all changes must be memorialized in writing, although memorializing changes in smaller orders is also recommended.) If a business is unable to negotiate a modification to the purchase order or if the seller rejects a cancellation, then, unless there is a legal defense for the cancellation, the business may be liable for the full amount of the purchase order in addition to the incidental damages of cancellation.

Some purchase orders may include contractual terms that define procedures for modifying or cancelling an order, but some might prohibit modifications or cancellations. Businesses should check the terms of their purchase orders to see what (if any) terms address modifications and cancellations because it may be possible to modify or cancel a purchase order according to already agreed-upon terms.

Should a seller sue to enforce the terms of a purchase order, there may be defenses available to buyers that could excuse them from performing contractual obligations based on force majeure or on common law doctrines of impossibility, frustration of purpose, and commercial impracticality. Each has different standards and applications, but all generally require that an unforeseen event alter a “basic assumption” that the parties made when they formed the contract. A business that is the buying party of a purchase order, who is attempting to cancel that order based on the COVID-19 crisis, would likely rely on the defense of frustration of purpose rather than impossibility or commercial impracticality since those defenses are more often used to excuse performance and a buyer is usually seeking to excuse payment.

Frustration of Purpose may be a defense to breach of contract claims when unforeseen circumstances outside the parties’ control affect the parties’ primary purpose in contracting to such an extent that it renders the other party's performance under the contract essentially worthless. The change in circumstances must substantially frustrate the parties’ primary purpose in making the contract and be outside the possible risks each party assumed by entering into the contract. Unprofitability alone is typically not enough. Note that frustration of purpose is used as a defense to a breach of contract claim and not a mechanism through which businesses can require modification of the terms of existing purchase orders.

In addition, it might be possible to delay, modify, or cancel a purchase order if it contains a “force majeure clause.” A force majeure clause is a contract term that may excuse a party from performing contractual obligations due to unforeseen events outside the parties’ control. Examples of events that can be covered by a force majeure clause include natural disasters, war, epidemics, governmental regulations, or labor strikes. Force majeure clauses vary and not all contracts include one. Businesses will need to look at the terms of their purchase orders to see if one is included; what events are covered; whether the clause excuses performance by the buyer, the seller or both; and what conditions may apply, including if notice must be given to the other party. Some force majeure clauses will only “pause” an affected party’s obligations until normal conditions return, while others may excuse performance depending on how long the force majeure event or conditions last.

In order to exercise a force majeure clause, typically the “affected party” and “event” must meet a few conditions:

  • the event must have been beyond the reasonable control of the affected party;
  • the event must have been unforeseen and have substantially interfered with the affected party’s ability to perform contractual obligations; and
  • the affected party must have taken all reasonable steps to seek to avoid or mitigate the event or its consequences.

The COVID-19 pandemic, particularly government shut-down orders, might trigger a force majeure clause, though it would depend on the clause’s specific language and the actual impact the COVID-19 pandemic has had on the specific business. COVID-related events are more likely to be covered by a force majeure clause if it includes language about pandemics, epidemics, and government orders.

Updated August 2020.

Insurance

Most standard policies do, though whether a specific loss will be covered depends on the language in the actual policy, taking into account any coverage exclusions that may apply. Business insurance policies typically cover physical loss or damage to insured premises and other business property caused by riot or civil commotion, including looting and vandalism. Some policy extensions may also cover business interruption losses, but business interruption insurance may not cover losses due to COVID-19, without physical damage.

In order to answer this question a business should review its insurance policy (or policies) because every policy is different. In particular, the business should pay close attention to the exclusions and interruptions that apply to the policy. Businesses should also carefully and thoroughly keep track of all damages and losses and provide prompt notice to the insurance provider. Finally, businesses should take reasonable steps to mitigate and prevent further damage or loss because insurers may reduce coverage for preventable damage.

Some commercial policies may potentially cover expenditures made to secure insured property against further loss. It is important that business owners check their specific insurance policies and contact their insurer directly. If you have a question about your insurance or a dispute with your insurer, you can call the California Department of Insurance (CDI) at 1-800-927-4357 or visit their website. The CDI has also a fact sheet about insurance coverage during civil unrest (available here).

Updated October 2020.

Closing a Business

If a business is at risk of insolvency because of the COVID-19 pandemic and is unable to pay outstanding debts, bankruptcy provides a process through which a business’s debts may be managed and restructured under court protection. In some instances, bankruptcy can provide an opportunity for a fresh start; however, its rules, limits, and options are quite complex and difficult to navigate without the assistance of an experienced attorney.

In determining which type of bankruptcy proceeding may be appropriate for any given circumstances, businesses should consider a number of factors, including how the business is structured, how viable it is as a going concern, whether the business plans to continue operations following bankruptcy, and whether the financial challenges it faces are short term or structural. How a business is structured will also affect whether its owners’ personal assets may be at risk in the bankruptcy proceeding. Under the present circumstances, businesses considering bankruptcy should evaluate whether there is a reasonable possibility that the business will be able to continue operations after the COVID-19 crisis subsides.

There are three common bankruptcy filings, which typically are referred to by the chapter number in which they appear in the U.S. Bankruptcy Code:

  • Chapter 7 (Liquidation): Requires the debtor to surrender control and ownership over most of its assets to a trustee who sells them and distributes the proceeds to creditors.
    - This may be appropriate if the motivation to file bankruptcy is to liquidate the business and cease operations and if the entity satisfies certain income and debt requirements. Click here for more information about Chapter 7 Bankruptcy.
    - Note, if an individual or another entity co-signed, guaranteed or is otherwise personally liable for any of the business’ debts (e.g., in a partnership), they will still be liable to pay that debt if it is not satisfied in the liquidation proceedings. If the business is structured as a sole proprietorship, the law does not view the business as a separate entity from its owner, so, under a Chapter 7 liquidation, the owner of a sole proprietorship would file for personal bankruptcy and not file separately for just the business.

  • Chapter 11 (Reorganization): Under Chapter 11, the debtor typically proposes a plan for reorganization that will allow the business to continue operations and pay creditors over time. The plan of reorganization may involve disposal of assets, forgiveness and/or restructuring of debts, mergers, and/or plans for new investment in the business.
    - Chapter 11 is commonly used by partnerships, corporations, limited liability companies, and even sole proprietorships that plans on continuing operations. Click here for more information about Chapter 11 Bankruptcy.
    - Under the Small Business Reorganization Act of 2019 (“SBRA”), eligible “small business debtors” who qualify under Chapter 11 may proceed under newly-enacted debtor-friendly bankruptcy standards and rules. In response to COVID-19, the Coronavirus Aid, Relief and Economic Security (“CARES”) Act temporarily expands this “small business debtor” eligibility for a period of one year (or longer if extended by Congress). Ordinarily under the SBRA, businesses already eligible for Chapter 11 bankruptcy proceedings and with debt of up to $2,725,625 can qualify as a “small business debtor.” The CARES Act raised this cap and allows businesses with up to $7,500,000 in aggregate secured and unsecured non-contingent and liquidated debt to proceed under the SBRA-enacted debtor-friendly procedures.

  • Chapter 13 (Adjustment): Requires the debtor to repay debts under a payment plan approved by creditors and the court.
    - Chapter 13 Bankruptcy is only available to individuals and sole proprietorships with certain income and debt levels.
    - Click here for more information about Chapter 13 Bankruptcy.

Initiating bankruptcy for a business generally involves filing a petition with the bankruptcy court serving the area in which the business is organized or in which the business has its principal place of business or principal assets. While bankruptcy has many advantages, it is not the only option for a troubled company. Some of the reasons a troubled business or one of its creditors may prefer alternatives to bankruptcy include costs, delays, litigation risks, future credit concerns, and perceived reputational damage.

Ultimately, a business should consult with a lawyer before deciding if bankruptcy is the right choice for that business. To use the American Bar Association’s lawyer referral service click here. If you are concerned about the cost of hiring a bankruptcy lawyer, click here for organizations that might offer free legal help.

Additional Resources

Updated July 2020.

An owner’s personal liability might depend on the way that the business is structured. If the business is a sole proprietorship, it is not legally separate from the owner. This means that the owner is likely liable for the business’s debts if the business’s creditors are not repaid with proceeds from the business. If the business is a partnership, then each partner of the business could be individually liable for all of the business’s debt. If the business is a corporation or limited liability company (“LLC”), creditors cannot typically access the personal assets of the owners. However, in order to maintain this liability protection, owners should be sure to keep their personal finances entirely separate from the business’s finances and observe the necessary separation formalities.

Even if the business is structured in a way that is designed to limit the owner’s personal liability, an owner still could be liable for the business’s debts if that owner made a personal guaranty for any agreements or other obligations of the business or if an owner secured a business debt with their personal collateral such as a house or car. Additionally, an owner might be liable if they signed their own name on an agreement, rather than the business’s name, even if it was a mistake. Furthermore, the credit card company for the business might have required one or more of the owners to agree to be personally liable for any debts on the credit card. And, if a business owner obtained a loan by misrepresenting facts related to the loan, they will likely not be able to limit their liability. Finally, if an owner personally engaged in a negligent or intentional act that injured another person, entity, or their property, that owner could also be personally liable even if they acted on behalf of a corporation or LLC. If you are concerned about your personal exposure for your business’s debts, consider consulting a legal professional. To use the American Bar Association’s lawyer referral service click here. If you are concerned about the cost of hiring a lawyer, click here to access a list of organizations that could potentially offer free legal help. Alternatively, click here to access the U.S. Small Business Administration’s Local Assistance Finder.

Updated June 2020.

Industry Specific Rules

Effective July 13, 2020 gyms and fitness center in Los Angeles as well as other California counties that are on the “County Monitoring” list for 3 consecutive days may NOT operate indoor facilities. Gyms and fitness establishments may only be open if their operations are moved outdoors.

Prior guidelines allowed fitness facilities in California to reopen once they implemented required safety protocols and received approval to reopen from the applicable county health officer. When fitness facilities in Los Angeles open, they will have to implement whatever measures from California’s Statewide Industry Guidance for Fitness Facilities that the Los Angeles County health officer deems appropriate. (Fitness Facilities in other counties will need to look to the measures imposed by the county health officer of the county in which they are located.) In addition to statewide guidance, the Los Angeles County Department of Public Health Order (here) provides that without a valid reason why a particular provision is not applicable to a particular business, gyms and fitness facilities are required to implement and to post the required LA County Reopening Protocol for Gym and Fitness establishments. The County Order also states that “Violation of or failure to comply with this Order is a crime punishable by fine, imprisonment, or both.” Fitness facilities planning to reopen in LA County should carefully review and follow the required LA County Reopening Protocol for Gym and Fitness establishments.

Additional amenities within fitness establishments, such as swimming pools, spas, snack bars, or playgrounds, must be operated in accordance with current orders and guidance for those amenities. For example, in Los Angeles County, swimming pools in non-residential settings were allowed to reopen as of June 12, 2020 so long as the owner, manager, or operator of the swimming pool implements and posts the required LA County Reopening Protocol for Swimming Pools. Note that additional rules and restrictions have been added since June. All hot tubs, saunas, and steam rooms located on non-residential property, however, are to remain closed. Please check here for updates and for other Reopening Protocols that may apply to your establishment.

Fitness facilities must also remember that, regardless of whether they operate indoors or outside, as employers under Cal-OSHA, they are required to implement an Injury and Illness Prevention Program. This is not a new law, but during the COVID-19 pandemic employers must assess whether the potential risk of contracting COVID-19 constitutes a potential workplace hazard, and if so, implement safety measures to reasonably minimize the risk of employees’ possible COVID-19 exposure. To comply with existing law, California businesses must perform a detailed risk assessment and implement a site-specific protection plan before opening their doors. More specifically, California Statewide Guidance recommends that reopening businesses:

  • Perform a detailed risk assessment and create a site-specific protection plan
  • Train employees on how to limit the spread of COVID-19. This includes how to screen themselves for symptoms and when to stay home.
  • Set up individual control measures and screenings
  • Put disinfection protocols in place
  • Establish physical distancing guidelines

In Los Angeles, all gym/fitness facility employees and patrons are required to wear face coverings at all times. While California generally requires masks in any public indoor space and in outdoor spaces where people are closer than 6 feet apart, different counties may have additional or different regulations. Face mask requirements are subject to limitations including exemptions for children under the age of 2 and for individuals who are unable to wear face masks due to a disability.

Fitness Facilities should also review and comply with any applicable cleaning and disinfecting protocols. See Center for Disease Control guidelines and California Department of Public Health COVID-19 Industry Guidance: Fitness Facilities, here.

Updated July 2020.

University of Southern California