Returning to the Workplace – What You Need to Know

This entry was posted on Friday, June 11th, 2021 and is filed under Employment Law.

On June 15, 2021, California’s economy is scheduled to fully reopen. This means that most businesses and public places may return to normal operations as there will be no capacity restrictions and no physical distancing requirements. However, California employers must continue to operate in compliance with Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards (“ETS”), adopted in November 2020. 

Despite the updated guidance from the CDC and the California Department of Public Health, which eased all COVID-19-related restrictions for vaccinated individuals as of June 15, 2021, Cal/OSHA’s ETS still requires that face coverings and physical distancing be required in the workplace. The California Department of Industrial Relations has released an ETS fact sheet, which can be found here. Cal/OSHA’s ETS applies to most workers that are not covered by the Aerosol Transmissible Diseases (ATD) standard

To comply with the ETS, employers must:

  1. develop a written COVID-19 Prevention Program or ensure its elements are included in an existing Injury and Illness Prevention Program; 
  2. provide effective training and instruction to employees on how COVID-19 is spread, infection prevention techniques, and information regarding COVID-19-related benefits that affected employees may be entitled to under applicable federal, state, or local laws; 
  3. offer COVID-19 testing at no cost and notify the local health department within 48 hours after learning of three or more COVID-19 cases in the workplace in a 14-day period; and 
  4. maintain a record of and track all COVID-19 cases, while ensuring medical information remains confidential. 

With the CDPH’s updated guidance in consideration, Cal/OSHA is expected to revise the ETS to align with the CDPH’s and CDC’s guidance and recommendations. The Occupational Safety and Health Standards Board (“OSHSB”) will likely adopt any new revisions to the ETS at their next regular meeting scheduled for June 17, 2021. If approved, those revisions will likely take effect by June 28, 2021.

Although not required, it will be in the best interest of the business for employers to be familiar with the following guidances:

  • California Department of Fair Employment and Housing’s (“DFEH”) March 2021 guidance on COVID-19, which provides information on how to handle issues such as personal protective equipment, job-protected leave and reasonable disability accommodations, employees displaying COVID-19 symptoms, and employer-mandated vaccinations; 
  • CDPH’s guidance on steps to promote better ventilation, filtration, and air quality in indoor environments for the purpose of reducing the spread of COVID-19. 

Please contact our office if you have not drafted a COVID-19 Prevention Program or need assistance updating your COVID-19 Prevention Program to remain compliant with the future revised requirements.

Are employees still required to wear masks?

Yes, in accordance with the current ETS requirements, employees are still required to wear masks indoors unless everyone is vaccinated. However, this requirement will likely change after June 17th when the revisions to the ETS will be reviewed by the OSHSB.

Can I require my employees to be vaccinated as a condition of employment?

Yes. According to the DFEH, employers may require employees to receive an FDA-authorized vaccine so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic; provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices; and does not retaliate against anyone for engaging in protected activity, such as requesting a reasonable accommodation.  

Keep in mind that California’s new COVID-19 supplemental sick leave law provides paid time off for expanded qualifying reasons, including to attend a vaccine appointment or if an employee cannot work or telework because of vaccine-related symptoms.  You can refer back to our May 27, 2021 blog for more information on the COVID-19 supplemental sick leave. 

Can employers require their employees to provide proof of vaccination?

Yes.  However, because such documentation could potentially include disability-related confidential information, it is advised that you instruct your employee or the applicant to omit any such confidential medical information from the documentation. All employee vaccination records must be maintained as confidential medical records.

If an employee reports feeling ill, what information can I request?

According to the DFEH guidance, you may ask employees who report feeling ill whether they are experiencing COVID-19 symptoms, such as fever, coughing or a sore throat.  

Do I have to rehire the employees I laid off due to Covid-19?

California does not have a statewide right of reemployment.  However, certain cities have enacted ordinances that require employers to first offer jobs to those employees who were laid off due to COVID-19 closures before hiring new employees.  For example, Los Angeles has enacted an ordinance that requires airport employers, commercial property employers that employ 25 or more janitorial, maintenance, or security service workers, event center employers, and hotel employers to rehire employees laid off due to COVID-19 closures.

Employer requirements are ever-changing as a result of the constant updates and guidance from State and Federal agencies. Please do not hesitate to reach out to our team to answer any questions you may have about your duties as an employer and employee requirements during the winding down of the COVID-19 pandemic.

By Rubina Andonian and Nellie Niakossary, June 11, 2021