Murchison & Cumming LLP

Operating Your Cannabis or Hemp Business in a COVID-19 Era

July 31, 2020

By: Heidi C. Quan

Is your cannabis or hemp business open or partially open? Do you have procedures to keep your customers, employees and vendors safe during a pandemic? Do you know what to do if an employee is sick with COVID-19? Regardless of whether you are a grower, retail operator, manufacturer, or distributor, you need to be prepared to re-open or keep your business open safely.

Generally, in California, before reopening, all facilities must do the following:

  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, including hand sanitizer near the entrance of your business.
  5. Establish physical distancing guidelines.

There may also be specific guidelines for your business depending upon your specific industry as well as local ordinances. Whether you are getting ready to re-open or have been operating, here are 10 FAQ's to help facilitate a safe and compliant operation for your cannabis or hemp business in this new COVID era.

1. Do employees have to come back to work?

The short answer is yes, with caveats. You have the right to request that your employees return to work where the local rules allow for it. Keep in mind that notifying employees to return to work is only the beginning of the process. If they qualify for certain leaves, they can take that. Remember that the new Families First Coronavirus Response Act ("FFCRA") will be effective until December 31, 2020. If an employee requires an accommodation, that needs to be considered. Otherwise, if an employee has no special consideration and you need them in order to operate, you can take action if they refuse to return.

The practical reality is that many people are hesitant and afraid to return to work, especially without knowing exactly how they will be protected while at work. Consider being flexible with how you bring employees back to the workplace, especially if employees have been successful with working from home, have childcare issues, or are in a vulnerable population. Consider sharing your workplace protection with your employees BEFORE they have to return in order to try and ease any concerns about the safety of returning to work. (See FAQ #2).

Always remember that there is a difference between someone saying that they don't want to return to work because they are generally afraid and someone specifically saying "I'm afraid to come back because I am immunocompromised." And remember that an employee does not need to specifically ask for an accommodation. Simply saying that they are immunocompromised triggers your requirement to engage in the interactive process and consideration of an accommodation, which could be modified hours, a special mask, moving a workspace, continued telecommuting or taking a leave of absence.

2. How can you keep employees safe?

With a pathogen as contagious as the coronavirus that causes COVID-19, employees will rightly want to know how they will be protected. To reassure employees, share all safety steps that are being taken to maintain a safe work environment, including creating a workplace protection plan that addresses identification and isolation of sick employees, social distancing, workplace hygiene, and workplace cleaning. Of course, each workplace is unique and will require different policies tailored to their specific sites.

General policies should include enforced safe distancing policies, temperature and/or daily question screenings, and continued education on the importance of frequent hand-washing, cleaning and sanitizing of workspaces, minimal face touching, staying home when sick and self-monitoring of symptoms. Some examples to help maintain a safe worksite include having ample hand sanitizers available throughout the worksite, keeping office doors closed, wearing appropriate face coverings, marking off 6-foot spacing with tape or other indicators, designating hallways and stairways as one-way, propping open doors to eliminate the need to touch handles, adding Plexiglas barriers at workspaces. For large manufacturing facilities, consider having more than one entrance for employees with staggered start times. But, be sure to have testing administered at each entrance open to employees. (See FAQ #3).

3. Does the company have the right to ask about employee health history and take temperatures? Can an employer send employees home if they display COVID-19 symptoms?

Yes. Employers are allowed to ask about coronavirus-related symptoms (fever, chills, cough or sore throat) and take the temperatures of employees under guidance from the Equal Employment Opportunity Commission (EEOC). The EEOC also permits employers to mandate that employees be tested for the virus before entering work under certain circumstances. Employers may also ask employees to go home if they display COVID-19 symptoms. Employers must provide paid sick leave and compensate the employee under paid sick leave laws. If sick leave is exhausted, employees may be entitled to other paid leave (including vacation or paid time off) or job protected unpaid leave.

Testing should be administered in the least invasive way possible, like using temperature guns or forehead temperatures. Testing should take place at the earliest possible opportunity point at the workplace (at entrance of the workspace), to protect employees who have made it through already. Consider staggering start times, so that lines do not form. If a medical professional or person with medical training is available, have them administer the temperatures. If somebody with medical training is not available or onsite, the company should consider whether managers or HR employees may be trained to administer and read the test results.

If temperature taking at the workplace is mandated, the time spent being tested and waiting for a test should be considered part of the workday, and the process should be well thought out to eliminate crowding. If an employer requires the temperature be taken at home before coming in to work, the employer should consider allotting a few minutes on employees' time cards for doing so. Consideration must also be given to providing notice to employees of the temperature screening process, data being collected and kept (if any) and the consequences for failing a screening. Please note that any data collected must be kept securely and separate from employees' personnel files.

4. Do employers need to obtain employees' consent or provide any notice before taking their temperatures?

Employers do not need written consent to take employees' temperatures during a pandemic if the test is not invasive. However, in California, employees of businesses covered by the California Consumer Privacy Act (CCPA) may be entitled to Notice before or at collection. This Notice must describe at the time of collection, what information is being collected (body temperature) and the purpose(s) for which the information will be used (maintain a safe work environment). This may be done through a general notice to all employees or by posting a disclosure at the site where temperatures are being taken.

5. If an employee is sent home after screening, can employers require temperature testing or a doctor's note to confirm they are no longer infected?

Yes. If someone has been sent home due to symptoms, administering a temperature test before allowing the employee to return to work is appropriate as the CDC recommends individuals be fever-free for at least 24 hours to ensure they have recovered. The CDC also recommends that anyone who recently had close contact with a person with COVID-19 should stay home for 14 days. The CDC therefore recommends that potentially exposed employees who do not have symptoms should remain home for 14 days. In such situations, please refer back to the FFCRA for requirements regarding paid leave.

Additionally, the EEOC has clarified that the Americans with Disability Act permits employers to require employees returning to work to provide a doctor's note stating they are fit for duty because the inquiry would not be disability-related and/or because confirming that an employee is no longer contagious is a legitimate business necessity. However, be flexible with the type of doctor's note that the employee provides. The EEOC notes that "doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus."

6. Can employers require employees to wear masks or other personal protective equipment (PPE)?

Yes. Some localities have required face coverings in order for businesses to re-open. Be sure to check your specific region for your own requirements. Keep in mind that employers may be required to either provide employees with PPEs or reimburse them for the expense if required in order to do their jobs.

Also consider whether or not to require your customers, contractors or vendors to wear masks. There may or may not be a local requirement to do so, but customers are an additional COVID-19 vector that should be considered when preparing for your employees to return. Just like employers may deny service to customers without a shirt or shoes, they can deny service to customers without a facemask.

7. What happens if an employee gets sick with COVID-19? What happens if someone in an employee's family gets sick with COVID-19 and the employee is the caregiver?

Employers need to understand state laws and federal programs which have been enacted to deal with this pandemic. The FFCRA provides paid sick leave for people affected by COVID-19, as well as paid emergency family leave under certain circumstances including when the employee's child care is unavailable for reasons relating to COVID-19 or when the employee must care for someone subject to a quarantine order or advised by a healthcare provider to self-quarantine. The United States Department of Labor has issued a helpful summary of FFCRA here.

8. What kind of certification is required if an employee requests leave under the CFRA?

In general, employees are expected to give employers notice as soon as practicable when a CFRA leave request is made. Employers may require a medical certification of the serious health condition from a health care provider within 15 days of the request, unless it is not practicable for the employee to do so. Given the current health crisis, it may not be practicable for employees to obtain certifications depending on the availability of their health care provider. Employers should use their judgment and consider waiving certification requirements when considering leave requests.

9. During a pandemic, may an employer ask employees why they have been absent from work if the employer suspects it is for a medical reason?

Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is entitled to ask why an employee has not reported for work. Should an employee disclose an illness or medically-related reason for absence, employers must maintain that information as a confidential medical record.

10. What if an employee gets sick after having been at work?

Privacy rights must be maintained, but employers must also maintain a safe workplace as required by law. If temperature screening reveals a fever, that employee should be immediately sent home with return-to-work instructions. Follow up with the employee regarding who they worked with, all the locations they worked and any other information to be able to notify all individuals who the employee came into contact with and comply with the most current local, state and federal public health recommendations. If an employee calls in sick specifically with COVID-19, the employer should ask all the same questions. Employers may have to close the worksite, do a deep cleaning and/or require employees to work from home for a period of time. If a deep cleaning is called for, do not attempt to it on your own. The CDC recommends hiring professionals.

Under no circumstances should sick employees be identified by name. Notification to affected employees must not reveal any personal health-related information of an employee.

Email Heidi Quan for more information or any other questions.


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