In this episode of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and employment law expert Jennifer Shaw discuss California’s COVID-19 Tier Framework and what employers should keep in mind as counties transition into and out of tiers.
California’s COVID-19 Tier Framework lays out the measures that counties must meet, based on indicators that capture disease burden, testing and health equity, in order to reopen business activity.
Frank explains that the framework assigns color-designated tiers to identify these metric groups:
- Tier 1, Purple: Highest risk tier where disease is “widespread.” Counties fall under the Purple Tier if they have more than 7 new daily cases per 100,000 residents, and a testing positivity rate higher than 8%.
- Tier 2, Red: Disease is “substantial,” with 4–7 new daily cases per 100,000 residents, and a testing positivity rate between 5–8%.
- Tier 3, Orange: Disease is “moderate,” with 1–3.9 new daily cases per 100,000 residents, and a testing positivity rate between 2–4.9%.
- Tier 4, Yellow: Lowest risk tier where disease is “minimal.” Counties fall under the Yellow Tier if they have less than 1 new daily case per 100,000 residents, and a testing positivity rate of less than 2%.
According to state guidelines, a county must remain in a tier for a minimum of three weeks before being able to advance to a less restrictive tier. Currently many counties are in the Red Tier, Frank tells listeners. Many counties are in the Purple Tier moving into the Red one.
These tiers are important, she says, because the tiers determine what changes businesses can make, how many employees can be brought back, and what type of flexibility needs to be given to working parents with school-age children.
Shaw points out that moving in and out of tiers is not a one-way road, so if there is a spike in cases, a county in a Red Tier can move back to the Purple Tier.
Employers should keep in mind that even if a county gets to the Yellow Tier, “we are not going ‘back to normal,” Shaw says. Certain protocols and workplace safety measures are not going to change because COVID-19 is not a short-term problem.
As a county moves into less restrictive tiers and more businesses are allowed to open, these employers will have additional recordkeeping responsibilities, safety protocol requirements, and new rest break requirements, such as granting certain employees additional time to wash their hands, Frank says. And in some cases, businesses may need to create new positions, such as hiring someone to give out hand sanitizer or hiring someone to ensure work areas are cleaned.
Employers have been through so much, Shaw tells Frank. From expansion of the California Family Rights Act (CFRA) to new workers’ compensation presumptions and additional supplemental sick leave for larger employers, businesses have seen “hit after hit after hit,” Shaw says.
Keeping up with new labor laws and local ordinances is very challenging and may change week by week. This is why it’s so important that employers do their due diligence to stay informed and make sure they are dotting their “I”s and crossing their “T”s, Shaw points out.
COVID-19 and the government response to the pandemic has become political, but regardless of one’s personal viewpoints, employers must comply with laws and local ordinances, Shaw stresses.
“It really behooves us, I think, to just draw a bright line between what our personal views might be and what we have to do as an employer,” she says.
Frank points out that as counties are reopening, some school districts are also reopening or partially reopening. In some cases, reopening school districts have been followed by upticks in COVID-19 cases, triggering shutdowns.
Working parents in these counties, Frank says, may be stuck in a ping pong situation, getting pulled in different directions as their employers reopen but the school district shuts down.
In these situations, and generally, flexibility is critical, Shaw stresses.
Although flexibility is mandated in some counties, employers should be as flexible as they can be even when it’s not required by law, Shaw tells listeners. Whether it’s giving more time for work assignments or asking if an employee needs help, giving workers flexibility is good for business, she comments.
“You will always come out better on the other end,” Shaw says.