Are You Thinking About Reopening Your Workplace? Think First About Your Safety Obligations to Your Employees.

Many employers are eager to return to the office and “get things back to normal.”  If you are an employer who is considering requiring or allowing employees to return to an in-person workplace (or if you have already done so), the first thing to understand is that there is no “back to normal,” at least not yet.  There is a new normal governed by a web of laws, administrative regulations, and guidance at the federal, state, and local levels.  Employers who return to the workplace must ensure they are in compliance with all applicable requirements, both to protect their employees and to avoid fines and other penalties.

Below are answers to some of the most frequent questions California employers have about returning to the in-person workplace.  Please note, however, that this is an ever-changing landscape with new guidance and requirements issued regularly.  Employers should consult employment counsel before returning to the workplace to ensure they have taken all required actions.

Can employers require employees to return to in-person work?

Yes.  Employers can now require that employees return, though many (including Google and Apple) have delayed their return dates in light of the spread of the Delta variant.

California employers who do choose to re-open physical workplaces must comply with the California Department of Occupational Health and Safety’s (”Cal/OHSA’s”) Emergency Temporary Standards (“ETS”).  (See below for a discussion of those requirements.)  Such employers must also determine whether their particularly location, at either the county or city level, have imposed additional requirements.

Employers must also be prepared to engage in an interactive process with employees who assert that they need to continue working from home because they have a disability.  As in any other context, employers are required to provide reasonable accommodations to disabled employees unless such accommodations would pose an undue hardship to the employer.

What does Cal/OSHA require employers to do?

Cal/OSHA requires employers to establish and implement a written COVID-19 Prevention Program (“CPP”) that is tailored to their specific workplace.  (Note that a CPP is required in addition to the Injury & Illness Prevention Policy (“IIPP”) all employers were already required to have in place.)

The Cal/OSHA regulations mandate that a compliant CCP contain the following 10 elements:

1. 1. System for communicating. This includes identifying the employer’s main point of contact for COVID-related issues, identifying how employees report COVID symptoms or a positive COVID test result, and how employees request accommodations.  
   2. Identification and evaluation of COVID-19 hazards. This includes implementing procedures for inspecting the entire workplace and identifying the most hazardous work areas, activities, and tasks, and documenting solutions; documenting the vaccination status of employees; screening all incoming employees, clients, and others; and conducting periodic inspections to identify COVID-19 risks.
   3. Investigating and responding to COVID-19 cases. In this section, the employer must include information regarding the employer’s procedures for investigating COVID-19 cases in the workplace and the steps that must be taken if there is a confirmed COVID-19 case in the workplace.  The requirements here are very detailed and will be the subject of a forthcoming blog post.
   4. Correction of COVID-19 hazards. This includes implementing policies and procedures for correcting unsafe or unhealthy work conditions.
   5. Training and instruction. This includes providing training and instruction to employees on the employer’s policies and procedures to identify and protect employees from COVID-19 hazards, COVID-19-related benefits to which the employee may be entitled, proper use of face coverings, the right of unvaccinated employees to a respirator, and the importance of staying home if an employee is experiencing COVID-19 symptoms.
   6. Face coverings. This includes the employer’s policies and procedures regarding when vaccinated and unvaccinated employees must use face coverings.
   7. Other engineering controls, administrative controls, and personal protective equipment. This includes maximizing fresh air to the extent possible, implementing cleaning and disinfecting procedures, evaluating the employer’s handwashing facilities and providing employees with effective hand sanitizer, and evaluating the need for personal protective equipment.
   8. Reporting, recordkeeping, and access. This includes maintaining records of the steps the employer takes to implement its CPP and reporting information about COVID-19 cases and outbreaks at the workplace to the local health department whenever required by law.
   9. Exclusion of COVID-19 cases and employees who had a close contact. This includes the employer’s procedures for ensuring that COVID-19 cases and employees who had a “close contact” are excluded from the workplace until the return-to-work requirements are met.  These details will be discussed in a forthcoming blog post.
   10. Return to work criteria. This includes the details regarding when an employee who has COVID-19, COVID-19 symptoms, and/or close contact with a person with COVID-19 may return to work. We will also discuss these requirements in further detail in a forthcoming blog post.

Creating a CPP understandably feels overwhelming to many employers, but thankfully, Cal/OSHA has created a customizable template employers can use to create their own compliant CCP.  You can download that template here.

Can employers legally mandate that employees be vaccinated?

Yes, but employers must provide reasonable accommodations to employees who have disabilities that prevent them from getting vaccinated or sincerely-held religious beliefs that conflict with vaccination generally or the COVID-19 vaccine specifically, unless providing such accommodation would be an undue hardship on the employer.  Whether an employee qualifies for a reasonable accommodation, and whether an accommodation would be an undue hardship on the employer, can only be determined by assessing the facts of each particular situation.

Do employers have to require that employees be vaccinated?

In some cases, yes.  Certain employers are now required by law to mandate vaccination for their employees.

For example, in San Francisco, all City employees must be fully vaccinated by November 1, 2021.  Similarly, President Biden has mandated vaccination for all federal employees, as well as many government contractors.

President Biden also recently announced that employers with 100 or more employees will soon be required to (a) ensure that their workforces are fully vaccinated or (b) require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.  The Department of Labor’s Occupational Safety and Health Administration (“OSHA”) is developing a rule to this effect and will issue an Emergency Temporary Standard to implement this requirement.

What should employers do if an employee objects to getting vaccinated?

If the employer’s vaccine mandate is voluntary and the objection is not based on the employee’s disability or sincerely-held religious belief (or the employer has determined the employee is not entitled to an accommodation), whether and how to enforce the vaccine mandate is a business decision.  However, it is not a decision that should be taken lightly.

Employers who voluntarily mandate vaccination, and then do not consistently enforce the mandate, could face – among other things – discrimination claims from employees who complied with the mandate and, perhaps most critically, that the decision not to enforce its own mandate undermines the employer’s credibility and authority with its employees.

Don’t forget to check back here next week for the second part of this blog:  What To Do if One of Your Employees Gets COVID-19.