At the end of March
2020, the American economy met a man-made economic disaster after the arrival
of the novel coronavirus (COVID-19). As part of the governor’s executive order, many
“non-essential” businesses were forced to close to prevent the spread of
COVID-19. If our local, state, and federal government believed so
strongly in temporarily shutting down progress in the US economy—in the distant
future—I foresee that new private patrol operator (PPO) or private investigator
(PI) qualified manager applicants will be tested on the legal mandates of
issuing personal protective equipment (PPE). Even if you have managed your
security or investigations business for any length of time, I strongly suggest
you consider my research and opinions.
Authority
The primary
authority for the California Code of Regulations (CCR) is its affirmation of,
“This order shall apply to all persons employed in professional, technical,
clerical, mechanical, and similar occupations whether paid on a time, piece
rate, commission, or other basis… (CCR,
Title 8, Section 11040.1).” In Section 11040.2(O), the professions
of “guard” and “investigator” are specified. The order confers an employee
certain rights, specifically, the right to PPE if certain conditions apply. I
suggest you read Section 11040 in its entirety to understand the conditions and
exceptions, but if not or when in doubt, you should assume that your employee
has the right to PPE.
Mandatory Risk Assessment
As an
employer, CCR Title 8, Section 3380 requires you to
conduct a risk assessment of the employee’s workplace and its conditions. The
assessment must be signed/certified. If hazards are present, or are likely to
be present, which necessitate the use of PPE, you must (1) select, and have
each affected employee use, the types of PPE that will protect the affected
employee from the hazards identified in the hazard assessment; (2) communicate
selection decisions to each affected employee; and (3) select PPE that properly
fits each affected employee. After the assessment, you must provide training to
the employee on how to use the PPE. As the employer, the law requires you to
pay for the PPE (Labor Code 6401).
Standard of Care
As the employer, no
matter where your employee is stationed, you have a duty to provide a
"safe and healthful" environment (Labor Code 6404) and
"to do every other thing reasonably necessary to protect the life, safety,
and health of employees (Labor Code 6403)."
For example, you may be familiar with the injury and illness prevention
programs required by Section 3203 of Title 8 of the California Code of
Regulations, that require employers to show their employees how to lift
something appropriately to prevent a back/neck injury (Labor Code 6403.5(a)).
In a negligence
claim, the plaintiff will attempt to show you did not meet a standard of care
and will often refer to laws or customs designed to prevent injury or
contamination. For this reason, you must provide PPE that is designed as
intended and that meets lab testing standards for its intended use (CCR
Tile 8, Section 3380(a)(2) refers to CCR
Title 8, Section 3206). In other words, you cannot issue a
cloth-only mask for an employee working in an airborne-pathogen rich
environment, or issue cloth gloves in a bloodborne pathogen setting. The
investigator assigned to a surveillance post on a dusty hill, ought to be
wearing a mask designed for dust particles. And those assigned to areas that
accommodate the hiding or hosting of used syringes, should have access to
puncture resistance gloves and sharps storage containers.
Contracts that Necessitate PPE
The most common
types of contracts that commonly necessitate the use of PPE are agreements
involving hospitals, medical facilities, construction sites, and hazardous
material sites. I would also not be surprised if—due to the COVID-19
outbreak—if clubs, bars, shopping centers, or other areas of public gathering,
would necessitate the use of PPE; however, at this point of time, this idea is
nothing more than speculation, but growing in popularity. The better business
practice is to issue PPE when your county Public Health Officer mandates
wearing PPE (Health and Safety Code Sections 101040, 101085, and 120175) or when your employee asks for it. A
lack of effective PPE supplies on the global or local market is not an excuse.
Always prepare for the worst. If you have any questions about whether there are
orders mandating such practice, click here and consult with the public
health officer assigned to your county.
Disclaimer
I am not an
attorney and no information discussed here cannot be construed as legal or
professional advice. I am not associated with the Bureau of Security and
Investigative Services. You should not make any financial, professional, or
legal decisions based on the information in this discussion without the advice
of a licensed attorney in your jurisdiction. The information may be incorrect.
Engage at your own risk.
S/ Shaun
E. Sundahl, Author of The Legal Investigator and the Private Patrol Operator.
Copyright 2020 by
Shaun E. Sundahl
