Los Angeles Orders Mandatory Face Coverings to Protect Certain Essential Employees

On April 7, 2020, Mayor Eric Garcetti issued the Worker Protection Order as part of a continued effort to protect workers in the City of Los Angeles. Effective Friday, April 10, 2020, the Order requires that certain essential workers wear face coverings while performing their duties, and thus creates additional obligations for businesses operating within the City of Los Angeles. With little time to spare before the Order goes into effect, employers should develop a plan for compliance now.

Does the Order Apply to My Business?

The Order applies only to certain workers who perform services for businesses exempt under Paragraph 5(vii) of the City of Los Angeles Safer At Home Emergency Order. The relevant jobs and industries are limited to the following subsections of businesses:

• Grocery stores, water retailers, farm and produce stands, supermarkets, convenience stores, warehouse stores, food banks, certified farmers’ markets, and other establishments engaged in the retail sale of canned food, dry goods, fresh fruits and vegetables, pet food and medication supply, fresh or frozen meats, fish, poultry, and any other household consumer products.
• Organizations and businesses that provide food, social services, and other necessities of life for economically disadvantaged or otherwise needy individuals.
• Hardware and building supply stores, day labor centers, and nurseries.
• Plumbers, electricians, exterminators, custodial/janitorial workers, handyman services, funeral home workers and morticians, moving services, HVAC installers, carpenters, day laborers, landscapers, gardeners, property managers and leasing agents, and private security personnel.
• Laundromats, dry cleaners, and laundry service providers.
• Restaurants and retail food facilities that prepare and offer food to customers.
• Individuals and businesses that ship or deliver groceries, food, beverages or goods directly to residences or businesses.
• Taxis, ride sharing services, car rental companies, and other private transportation services.
• Hotels, motels, and shared rental units.

What Is Required Under the Order?

All workers who perform services in the relevant jobs and industries must wear face coverings over their noses and mouths while performing their work. Fabric coverings, such as scarves and bandanas, are permitted, provided that they are washed at least once a day. Single-use face coverings also may be used; those types of face coverings must be properly discarded into trash receptacles. The face coverings—whether fabric or single-use—must be provided by the employer, at the employer’s expense.

The face covering requirement also applies to customers and visitors of the applicable businesses, and a business may refuse admission or service to any individual who fails to wear a face covering.

Employers must also permit employees to wash their hands at least every 30 minutes. Towards that end, employees must have access to all necessary cleansing products or sanitizing agents required to observe hand sanitation protocols recommended by the Los Angeles County Department of Public Health.

Finally, all jobs/industries affected by the Order must implement social distancing measures for customers, visitors, and employees that provide a six-foot buffer, to the extent possible, between individuals. Retail businesses are also encouraged to install plexiglass to separate cashiers and customers at all points of sale (this is simply a recommendation, not a requirement).

How Should My Company Comply With the Order?

Best practices dictate that employers covered by the Order provide single-use face coverings for all employees. This eliminates the need to wash face coverings at least once a day. Many employees prefer cloth face coverings, however, and there currently is a shortage of single-use face coverings. Therefore, employers likely will need to consider other options unless they have access to sufficient single-use face coverings, including:

What if My Company Is Not in a Position to Provide Fabric Face Coverings?

The Order requires employers to provide the face coverings. Employers who do not already have sufficient face coverings for their employees may preorder them here, a website maintained by Mayor Garcetti’s office. If, however, the employer cannot provide face coverings to all employees, it could permit employees to use their own fabric face coverings.

How Much Does My Company Need to Reimburse Employees for Providing Their Own Face Coverings?

If employees purchase their own fabric face coverings, employers likely will need to reimburse employees for the actual cost of the fabric face coverings along with a small reimbursement for the costs for cleaning supplies. Employers may set reasonable limitations (i.e., total cost of fabric face coverings or number of fabric face coverings an employee may purchase), provided that the limitations actually result in access to fabric face coverings (recall, fabric face coverings are currently in high demand and are being sold at a premium).

• If, on the other hand, employees use their own fabric face coverings (e.g., scarves or bandanas they already own), employers should reimburse their employees for use of the fabric face coverings. Although the law is unsettled, we recommend offering employees a small stipend to cover the cost of use and maintenance of the employee’s own fabric face coverings, to be increased if the employee otherwise informs the employer that the reimbursement is insufficient (and provides a reasonable explanation as to why the reimbursement is insufficient).
• If employees must provide their own single-use face coverings, they must be reimbursed for them.
• Employers who fail to provide face coverings may also need to pay for the time for employees to procure them, so the best practice would be to source and provide the face coverings.

How Many Fabric Face Coverings Should My Company Provide to Each Employee?

Because fabric face coverings must be washed at least once a day, employers should provide more than a single fabric face covering to each employee.

For example, if an employee who works five days per week only is provided one fabric face covering, the employee may need to wash that fabric face covering every single day. In that case, the employer may need to pay the employee for time spent washing the fabric face covering in addition to other expenses (e.g., detergent).

If employees are provided with sufficient fabric face coverings to last one work week, then the fabric face coverings can be washed with the employees’ other laundry and reimbursement for washing the fabric face coverings would likely not be required.

Can We Wash Fabric Face Coverings On-Site?

Unless an employer has a washer and dryer on-site, we do not recommend in-house washing of fabric face coverings. Even if an on-site washer and dryer is available, it may not make sense to wash fabric face coverings in-house because employees may not feel comfortable wearing coverings washed with or exchanged with others.

Other Local Orders Regarding Face Coverings

Other cities and counties will no doubt follow suit and implement their own face covering orders and ordinances. For example, on April 4, 2020, San Diego County enacted a similar requirement for employees who have contact with the public in any grocery store, pharmacy/drug store, convenience store, gas station, restaurant, and other business establishment that serves food to wear a “cloth face covering” over their noses and mouths. Single-use and paper face coverings are not mentioned in the ordinance and therefore appear not to be permitted.

Conclusion

The Los Angeles and San Diego County Orders represent additional local efforts to protect employee health and well-being. Employers must consider several factors when determining how to best create personnel policies surrounding these Orders.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.