Preventing and Managing Coronavirus Outbreaks in the Cannabis Workplace

By Lauren Mendelsohn

August 17, 2020

 

As the coronavirus pandemic continues to rage across the United States and other countries, it is important that health and safety measures are implemented in the workplace to prevent more outbreaks and protect employees, contractors, and the general public. This applies whether the business in question is an “essential business” that has been allowed to remain open during the past few months, or a business that was previously shut down by a local or state order before being allowed to reopen. 

This blog post will discuss ways that cannabis businesses can minimize the chances of coronavirus entering and spreading within the workplace, and how doing so can help employers minimize their liability for being reported for violations and/or sued for claims related to COVID-19. 

 

Stay Up-To-Date on Relevant Rules and Guidelines

It is critical that business owners and supervisors remain aware of the current guidance and regulations put forth by the relevant federal, state, and local agencies, and that they do their best to comply with and implement recommended and required practices — including ceasing operations if required to do so. In instances where guidance conflicts, the most stringent one ought to be followed in order to minimize risk. The reason for this is not only to protect workers and the public from infection, but also to protect the employer against a later claim of negligence, nuisance or discrimination.

Here in the United States, at the federal level the primary agencies involved in issuing COVID-related guidance and resources for workplaces include the Centers for Disease Control 

(CDC); the Department of Labor (DOL); the Occupational Safety and Health Administration (OSHA), which is part of the DOL; and the Equal Employment Opportunity Commission (EEOC). The President also has the authority to issue orders related to public health that could impact the workplace, such as imposing a federal quarantine or mandating that a certain factory remain open via the Defense Production Act. 

In the State of California, where our office is located, guidance and regulations related to coronavirus have been issued by the State’s Public Health Officer and the California Department Public Health (CDPH); the Employment Development Department (EDD); the Labor and Workforce Development Agency; the Department of Industrial Relations (DIR), which includes Cal/OSHA; and the Department of Fair Employment and Housing (DFEH). The Governor’s Office has also been very proactive: Gov. Gavin Newsom has held daily press conferences and issued numerous Executive Orders since a Statewide Emergency was first declared due to the coronavirus in March of this year.  California’s statewide coronavirus resource website is also updated frequently with new information. 

As of the date of this article, there is a statewide facial covering order in effect that all people in California, including employers and including workers, must comply with. In addition, not all businesses are currently allowed to operate per state mandate: certain businesses have been ordered to close back down again after a brief reopening earlier this year. Employers and business owners should check to make sure they are not prohibited from operating by a state or local health order. (Cannabis businesses have been deemed “essential” by the State, and therefore have largely been able to keep facilities operating during the pandemic.)

At the local level, guidance and regulations will typically come from county (or city) health departments and local governing bodies, such as city councils or boards of supervisors. In California, each of the 58 counties and a few larger cities have their own Health Officer, who can issue far-reaching Orders such as the “Shelter in Place” (SIP) orders that were issued by many localities throughout the state, including Sonoma County where we are based, earlier this year. 

Here in Sonoma County, the current local health order requires businesses to implement and post a Social Distancing Protocol and COVID-19 Site-Specific Protection Plan. 

The Sonoma County Economic Development Board has created a page containing COVID-19 best management plans for various industries which local businesses may find to be a useful resource. That said, even with best practices in place, certain types of businesses have been ordered to close down again due to the fact that the county is currently on the state’s Monitoring List, in addition to the types of businesses that have been ordered to shut down again statewide as California experiences an uptick in cases and fatalities.

Many local coronavirus-related health orders contain penalties for failure to comply, such as monetary fines and even criminal sanctions. For example, violation of Sonoma County’s health order, which could include a business operating despite a current closure order or an individual not complying with social distancing guidance, is considered a misdemeanor and could lead to a fine and/or jail time. The Board of Supervisors also recently adopted an ordinance imposing fines and civil penalties for individuals and businesses who are not complying with the county’s facial covering order. Some other Northern California counties, including Mendocino and Napa Counties, have also done this in recent weeks. 

 

Implementing Industry- and Site-Specific Outbreak Prevention and Management Measures 

Employers whose workplaces remain open, or who are able to re-open after a period of closure, should take proactive steps to modify the work environment to reduce the risk that the virus could spread between employees. Not doing so could amount to negligence, in addition to violation of an applicable health order. Employers who transition to a remote work setting also have concerns to be aware of, though a detailed analysis of those is beyond the scope of this blog post.

According to California’s COVID-19 Employer Playbook, all workplaces in the State must do the following to protect employees and the public:

 

• Perform a detailed risk assessment and create a work site-specific COVID-19 prevention plan. The site-specific COVID-19 prevention plan should be provided in writing to all employees. Depending on the type of workplace, different measures will be needed.

• Train workers 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. This could be done via non-invasive employee temperature checks prior to the start of each shift. Employers could also consider having workers fill out a questionnaire.

• Put disinfection protocols in place. Thorough cleaning and disinfecting is critical, especially if there is a suspected or confirmed case in the workplace. The CDC has issued guidelines for COVID-19 disinfection procedures that businesses can follow. 

• Establish physical distancing guidelines. This could include minimizing the use of shared equipment; increasing the spacing between employee workspaces; installing plexiglass barriers between workspaces or at checkout registers; staggering shifts to prevent lines or groups of people congregating; placing markers on the floor to indicate recommended spacing; creating a one-way flow of traffic within the facility; or transitioning to a curbside pick-up or delivery model.

• Establish universal face covering requirements (with allowed exceptions) in accordance with CDPH guidelines. Failing to do so could result in civil and/or criminal penalties in many jurisdictions. It is also simply a smart thing to do, as scientific evidence demonstrates that wearing a mask reduces the likelihood of transmitting the virus. In other words, it will help keep you, your employees, and the public safe.
  

 

In addition, the California Department of Public Health has issued a checklist for employers to respond to and manage COVID-19 outbreaks in the workplace, which includes the following steps:

 

• Prepare to identify outbreaks. Employers should designate a workplace infection prevention coordinator to oversee implementation of coronavirus-related safety measures and manage coronavirus-related issues from employees. Employers should also ask employees to stay home if  they are displaying symptoms of COVID-19, have tested positive for COVID-19, or are awaiting COVID-19 test results.
• Prepare to share information with the local health department (LHD) and other stakeholders. Coordination with the LHD is critical in the event of an outbreak. Be sure to transmit employee’s confidential health information in a secure manner, in accordance with HIPAA. 
• Understand the requirements for reporting employee cases to Cal/OSHA. Any serious injury, illness or death that occurs in or in connection to a place of employment must be reported to Cal/OSHA. Since it is impossible to know exactly where an infected employee contracted the virus, employers should assume it was contracted in the workplace and report any serious employee illness, injury, or death, including any employee hospitalizations related to COVID-19 to Cal/OSHA. 
• Contact tracing (additional employees and contacts of existing cases) to control further spread. Employers should implement some kind of testing for employees, and should coordinate with their local health department on this. Employers should be prepared to interview positive employee cases, and should instruct close contacts of confirmed employee cases (such as family members) to quarantine for 14 days and to monitor their symptoms.
• Notifying and managing employees in the event of an outbreak. An employee’s COVID-19 status is protected health information. Thus, employers must be careful to maintain the confidentiality of this information, including when communicating with other employees about possible exposure. Any employees who are sent home before or during a shift should be provided with information about what to expect next (such as testing instructions, sick leave rights under applicable laws and company policies, return-to-work requirements, etc.).
• Determining when it’s appropriate for cases and close contacts of cases to return to work. Employers should consult with the local health department and the latest CDC guidance when determining if it is acceptable for an employee with a confirmed case to return to the workplace. (The CDPH included a table at the bottom of the checklist outlining the minimum criteria for this.)
• Perform frequent cleaning and disinfection of the workplace. As mentioned, this is critical to prevent germs from spreading to other employees and the public. This is especially true if there is a positive case in the workplace. The CDC has issued guidelines for proper disinfection procedures for businesses to follow.
• Regularly checking for new guidance. As mentioned above, it is important to stay on top of the latest guidance from applicable federal, state, and local authorities.

 

Application to Cannabis Businesses

You might be wondering how all of this will apply to cannabis companies, which have been deemed to be essential workers by the State of California as well as other states across the United States. The answer is that, at least for these purposes, they should be treated like any other type of company in a similar industry. For example, a cultivation licensee should follow guidance directed at agricultural operations. A distributor would fit into the categories of warehousing and logistics. A cannabis manufacturer could look towards guidance directed at other types of manufacturing facilities. Dispensaries ought to follow guidelines intended for retail establishments, and if they offer delivery, then delivery-specific guidance should be followed as well. 

The California Department of Public Health and Cal/OSHA have issued guidelines and checklists for businesses in various industries to operate safely in the COVID-19 era if they are permitted to be open under applicable health orders. Below are links to the documents that are most relevant to members of the cannabis industry. Be sure to check the California COVID-19 website regularly for any updates.

 

Agriculture and Livestock Industry (including cannabis cultivators)

• Guidance
• Checklist

Delivery Services (including cannabis dispensaries who conduct delivery)

• Guidance
• Checklist

Logistics and Warehousing Facilities (including cannabis distributors and transporters)

• Guidance
• Checklist

Manufacturing Industry (including cannabis manufacturers)

• Guidance
• Checklist

Retail (including cannabis dispensaries)

• Guidance
• Checklist

Life Sciences (including testing laboratories)

• Guidance
• Checklist

Office Workspaces (including offices associated with cannabis businesses)

• Guidance
• Checklist

 

In addition, the California Bureau of Cannabis Control, the Department of Food & Agriculture, and the Manufactured Cannabis Safety Branch have all published websites regarding COVID-19, and licensees should check with the appropriate agencies for additional guidance and updates.

 

Compliance with COVID-related Employment Laws

Although a full discussion of Federal and California employee leave laws is beyond the scope of this blog post, it is important that employers are aware that new laws have been passed which give employees paid time off to take care of themselves or a family member who has or is suspected to have COVID-19. The California Department of Industrial Relations has published a side-by-side comparison of Federal and State coronavirus-related paid leave laws, which is available here (please note that this information may be out of date). In addition, the Families First Coronavirus Response Act (FFCRA) requires that employers post a notice about the FFCRA’s employee leave laws conspicuously in the workplace. 

Furthermore, certain cities and counties may have their own ordinances governing paid coronavirus leave; for example, the city of San Jose, California adopted an ordinance expanding upon the FFRCA. Thus, as is the case with any of the other guidance we’ve discussed, be sure to check with your local jurisdiction to see if they have imposed any additional rules beyond what is being required by the state or federal government.

Additionally, employers must take care to not engage in actions that could constitute employee discrimination or retaliation. For example, when bringing employees back to the workplace, although it might make sense to bring back younger employees first since they are supposedly at lower risk of contracting and getting seriously ill from coronavirus, such action might result in an age discrimination claim.

 

Conclusion

In conclusion, it is critical that cannabis business owners stay informed about and comply with the local, state, and federal regulations and guidance related to COVID-19 that apply to their workplace and industry. Not only will this help to reduce the spread of coronavirus, but it will also reduce the chances of litigation down the road.

Stay tuned for a future blog post discussing ways that employers might seek to contractually limit their liability for COVID-related claims, including arbitration agreements and liability waivers, and how successful we anticipate that such measures might be.

 

This information is provided as a public educational service and is not intended as legal advice. For more information about the implications of coronavirus on your cannabis or hemp business in California, please contact the Law Offices of Omar Figueroa at (707) 829-0215 or info@omarfigueroa.com to schedule a confidential legal consultation.