In early 2020 as the COVID-19 pandemic began, many California employers quickly mobilized their workforces to perform their jobs remotely. Now, as California moves toward regular business operations, many employers are ready to reopen their workplaces. However, the legal landscape has changed, and employers must strategically adapt.
Employers are subject to new COVID-19 safety regulations. The California Division of Occupational Safety and Health (“Cal/OSHA”)’s COVID-19 Emergency Temporary Standards (“ETS”) require employers to implement a written COVID-19 Prevention Program (“CPP”), addressing issues such as workplace safety protocols and complaint procedures when employees have COVID-19-related concerns. The ETS also requires employers to train onsite employees on many of these issues.
Although Cal/OSHA has provided a model CPP online, employers must customize it based on their practices and work environments, as well as other applicable requirements. For example, employers should ensure their CPPs align with local requirements and the State’s “COVID-19 Employer Playbook.”
Employers also should monitor the latest requirements and recommended practices from a variety of federal, state, and local governments and public health entities, including the Centers for Disease Control (“CDC”), the California Department of Public Health (“CDPH”), the Occupational Health and Safety Administration (“OSHA”), and Cal/OSHA. Particularly as vaccination rates increase, these entities may relax restrictions or provide new recommendations on issues such as face coverings, distancing, travel, and more.
Employers also should consider whether to require or encourage employee vaccinations as a condition of returning to work. Vaccinations will reduce transmission risks, but some employees may object strongly.
If an employer requires vaccinations, it must pay the associated costs, including wages for the time spent obtaining the vaccine. Employees who experience adverse reactions also may be entitled to workers’ compensation benefits, and these reactions may require additional safety-related documentation. Employers must treat vaccination records as confidential medical records, and as further explained below, may be required to accommodate employees who have a medical condition or religious belief that prevents them from being vaccinated.
Employers who wish to “encourage” vaccines face different challenges. It legally is unclear whether an employer can provide anything greater than a minor incentive for obtaining the vaccine under federal regulations affecting wellness programs. Even if they can provide such incentives, they must be included in the employees’ “regular rate” for calculating overtime. In addition, employers must consider reasonable accommodations for employees who will lose the benefit of the incentive because they cannot be vaccinated. Finally, even if employers do provide an incentive, there is no guarantee that it will encourage otherwise reluctant employees to obtain a vaccine.
If an employer does not require or encourage a vaccine, they must still allow employees to take paid, “supplemental” sick leave to obtain one and/or recover from the symptoms (“2021 COVID-19 Supplemental Sick Leave”). This new law applies to employers with more than 25 employees, and entitles full-time employees to up to 80 hours of sick leave for these and other COVID-19-related purposes. It also includes notice, wage statement, and other requirements. Both remote and onsite employees are entitled to 2021 COVID-19 Supplemental Sick Leave, and employers should anticipate increased use as employees prepare to return to work.
Employers also should anticipate an increase in requests for reasonable accommodation from employees with medical conditions or religious beliefs that affect their ability to work onsite. For example, some may be unable to be vaccinated, while others may request to continue to work remotely.
An employer must be prepared to engage in an “interactive discussion” with an employee to determine whether it can provide a “reasonable accommodation” that will enable the employee to perform the essential functions of the job. Whether the employer is required to provide an accommodation, and what accommodation options may be appropriate, always depends on the circumstances. For example, although an employee may prefer to continue to work remotely because a medical condition prevents them from being vaccinated, the employer may be able to offer other effective accommodations to reduce COVID-19 risk, such as personal protective equipment, increased social distancing, and/or private onsite workspace.
Employers also should anticipate other requests for deviations from “regular” work practices that are unrelated to medical conditions or religious beliefs. For example, employees may request to continue working remotely if they have children who are distance learning. Other employees may simply wish to continue remote work because it is more convenient. Employers may not be legally obligated to consider or honor these requests, but may choose to do so for morale or retention reasons. However, they should ensure their practices are justifiable (e.g., based on the type of work performed and the employee’s performance record) and do not create perceptions of favoritism or unfairness, such as only permitting managers to work remotely, which can create legal challenges and damage morale.
Getting Ready: Steps to Take
Keeping these and other issues in mind, employers should take concrete steps to be ready to reopen their workplaces. They should decide who will be primarily responsible for meeting the requirements above, and other appropriate actions to reintegrate employees. They must then draft or update their CPPs, develop training, and be prepared to implement related practices and protocols like health screening checks, COVID-19 response protocols (for positive workplace cases), and more. In that process, they must consider whether and how they will address vaccinations, reasonable accommodation requests, and other employee requests for flexibility and deviation from “regular” practices.
To ease the transition, employers should provide employees with as much notice as possible of the reentry plan and timeline. Doing so will also allow the employer to address any accommodation issues well in advance of implementing the plan, and to prepare the written policies and protocols addressing the issues above.
We all look forward to returning to “normal.” Taking these steps will help make the process smoother for everyone.