May 11, 2020

Last week, Governor Newsom began modifying the stay at home order and released updated industry guidance for businesses to follow as we begin moving into Stage 2 of California’s Resilience Roadmap.    As is true for most things related to agriculture in California, the agricultural industry is subject to its own specific rules.  A complete copy of the guidance and checklist published for Agriculture and Livestock is available here. 

Below is a brief summary of steps to comply with these requirements and safely re-open your California agricultural business.  While agriculture is part of the State and nation’s critical infrastructure, and many businesses have continued operations at this time, agricultural businesses should review these guidelines to not only lessen the risk of future liability, but more importantly to maintain the health and safety of your workforce and your customers. 

Step 1:  Create a Plan and Put it in Action. 

A main requirement of the Phase 2 re-opening guidelines for agriculture and livestock businesses is to have a “written, worksite-specific COVID-19 prevention plan at every facility.”  This means a company may need to have multiple, different plans in place for each work environment, such as production fields, coolers or processing facilities, and office environments.  Each plan must designate a person in charge of implementing it at that location and contain contact information for the local health department communicating information related to COVID-19 outbreaks. 

After creating a plan and putting it in place, agricultural businesses should carefully evaluate their plan’s effectiveness or deficiencies, monitor how well it is actually being implemented by employees, and make any needed adjustments.  If any employee contracts a COVID-19 related illness, an investigation should be conducted to determine if any conditions at your business may have played a factor, and if so, your plan should be revised accordingly. 

The plan should be translated into Spanish or any other language your employees may speak and read.

Step 2:  Train Your Employees

All employees should know what their COVID-19 worksite safety plan is, where they can get a copy of it, and who they can bring questions to.  Agricultural employers should also hold regular COVID-19 related safety trainings with employees about what underlying health conditions may make them more susceptible to a COVID-19 illness or complication, how they can and should be self-screening at home, when they should seek medical attention, and the importance of social distancing both at work and after work. 

Employees should also know the importance of staying home if they or someone they live with experience any COVID-19 symptoms, such as a fever, frequent cough, difficulty breathing, chills, muscle aches, headaches, sore throat, difficulty breathing, or a recent loss of taste or smell.  To encourage employees to stay home if they are experiencing any of these symptoms, employees should be advised that they will not be subject to any form of retaliation for not reporting to work under these circumstances and that they have the potential to receive some pay for the missed time under the Families First Coronavirus Response Act (FFCRA). 

Step 3:  Implement COVID-19 Related Safety Measures and Protocols

OSHA has specific requirements to prevent the spread of infection at agricultural worksites, and a link to that website is available here.  In addition to being necessary for OSHA compliance, safety measures related to COVID-19 are also a requirement for Phase 2 re-opening.  These safety measures can include:  taking employees’ temperatures at the beginning and end of each shift; providing employees with personal protective equipment (PPE) and face coverings; and implementing physical distancing to the extent possible (tips on how to do so are listed below).  All time an employee spends performing required safety measures is compensable time and should be included in their payroll records and on their wage statements.  For piece-rate employees, this time should be recorded and compensated at the higher of their average hourly rate or the applicable minimum wage because this would be considered non-productive time similar to rest and recovery periods.  Failure to pay employees for the time spent complying with safety requirements (and not including this time on an itemized pay stub) could lead to wage and hour liability.  If you are not familiar with the legal requirements for paying piece-rate employees for non-productive time, or need more information about how to calculate the correct hourly rate to pay piece-rate employees for non-productive time, go to the DLSE’s website: https://www.dir.ca.gov/pieceratebackpayelection/AB_1513_FAQs.htm

Step 4:  Sanitize, Sanitize, Sanitize. 

One of Phase 2’s requirements is to have cleaning and disinfecting protocols in place.  Agricultural businesses should not assume that prior cleaning and disinfecting protocols are sufficient, but should review the specific guidelines for this unique circumstance caused by COVID-19.

High traffic areas like restrooms, shade areas and break rooms, should be disinfected throughout the day and after each use.  Commonly used surfaces, such as steering wheels, water dispensers, shared tools, door handles, and equipment controls, should also be cleaned throughout the day and after each use.  Any time an employee spends cleaning should be paid and included on their payroll records and wage statements. 

Delivery vehicles (like trucks taking produce to the cooler) should be cleaned before and after each trip and provided with sanitation materials to use between deliveries.  Employees should also be provided with sanitation products to use when needed, such as when using a field portable restroom or getting water from a shared dispenser.  Any cleaning products provided by the company must be on the EPA’s approved list and be approved for use against COVID-19.  Employees should also receive training from the company on how to safely use any company-provided sanitation products, as well as when to use them. 

Step 5:  Enforce Physical Distancing to the Extent Possible

Maintaining physical distancing is another key factor to complying with the State’s Phase 2 re-opening requirements.  Steps should be taken to ensure physical distancing of at least six feet (6’) between workers.  For field workers, this could mean taking actions such as providing additional bathrooms or shade areas to prevent long lines and large groups congregating in a single area, or providing personal water bottles to employees rather than providing water through a community dispenser.  Other steps could include staggering shifts, spreading out harvest areas, rotating break times (while still complying with wage and hour requirements) and adjusting any safety or other mandatory meetings to include only individuals or small groups.  In addition to social distancing, employees should be provided with face masks and encouraged to use them whenever they are not performing tasks that require a respirator (like applying pesticides). 

California and its agriculture industry are in uncharted waters with COVID-19 and re-opening the State.  But, by following the steps above and complying with the Governor’s checklist for Agriculture and Livestock employers, agricultural businesses can re-open (or maintain operations) with less uncertainty and help ensure the safety of their workers and consumers. 

For assistance, contact Amber Simmons at asimmons@amblaw.com.