Safe Reopening Requirements
A. Vaccine Policies
As vaccines become widely available and more businesses are reopening, the question of whether an employer may require employees to be vaccinated against COVID-19 becomes more important for both employees and business owners throughout California.
- Mandatory Vaccine Policies are Generally Lawful
Generally, pursuant to both federal Equal Employment Opportunity Commission (EEOC) guidance, as well as the California Department of Fair Employment and Housing (DFEH), an employer may require an FDA approved COVID-19 vaccine as a condition of employment or return to the workplace. However, there are several areas to pay special attention to and/or which may allow an exemption to individual employees.
- Disability Accommodation
A qualified individual with a disability may be entitled to an exemption from an employer required vaccine policy. The FEHA requires employers to make reasonable accommodations to an employees’ known disabilities. If an employee objects to vaccination on a disability related basis, the employer must engage in an interactive process to reasonably accommodate the employee. If an accommodation is available that does not create an undue hardship on the employer, it must be provided to the disabled employee. However, if the employee cannot perform the essential functions of their position in a manner that doesn’t endanger the health or safety of others, even with reasonable accommodations, the employer may exclude the employee from the workplace.
- Religious Accommodation
If an employee objects to vaccination on the basis of a sincerely held religious belief or practice, the employer must reasonably accommodate the employee. The accommodation analysis is not as stringent as with disability. Unless specifically requested by the employee, a religious based accommodation is not considered reasonable if such accommodation results in the segregation of the individual from other employees or the public. If the employer shows that an accommodation imposes an undue hardship, the employer may exclude the employee from the workplace.
- But I Don’t Trust the Vaccine — Employee Refusal
Some people are afraid of, or uncomfortable getting the vaccine. If an employee refuses to be vaccinated with an FDA-approved COVID-19 vaccine but does not have a disability reason or sincerely held religious reason for not being vaccinated, the employer does not have to accommodate that employee. The employee may be refused access to the worksite.
- Employer Inquiry
As part of returning to work, employers may seek limited medical information. Employers may generally ask their employees entering a workplace whether they are experiencing COVID-19 symptoms and/or require proof of vaccination.
- Requesting proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination since there are other unprotected reasons a person may not be vaccinated. However, because such documentation could potentially include disability related medical information, an employer should specifically omit any other medical information from that documentation. Importantly, if a mandatory vaccine policy is enacted at a workplace, information obtained would be considered a confidential medical record and that information must be kept private and maintained separately from regular personnel files.
- The scope of permissible inquiry may change over time. As cases decrease or increase, these standards could change — employers should rely on the CDC and other public health authorities for guidance.
- If you would like further guidance as to the DFEH or EEOC, the following links may be helpful:
B. Worksite Specific Plan to Prevent COVID-19
- Actively encourage sick employees to stay home.
- Immediately send employees home or to medical care, as needed, if they have a frequent cough, fever, difficulty breathing, chills, muscle pain, headache, sore throat, or recent loss of taste or smell.
- At least three full days pass with no fever (without the use of fever-reducing medications) and no acute respiratory illness symptoms; and
- At least 10 days pass since the symptoms first appeared. Provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 if required to by the Families First Coronavirus Response Act.
- Ensure employees that return to work following an illness promptly report any recurrence of symptoms.
- Encourage employees to telework from home when possible.
- Practice physical distancing- cancelling in-person meetings, using video or telephonic meetings, and maintaining a distance of at least 6 feet between persons at the workplace when possible.
- Provide employees with cloth face covers or encourage employees to use their own face covers for use whenever employees may be in workplaces with other persons. Cloth face coverings are not personal protective equipment (PPE), but combined with physical distancing of at least six feet, they may help prevent infected persons without symptoms from unknowingly spreading COVID-19.
- Avoid shared workspaces (desks, offices, and cubicles) and work items (phones, computers, other work tools, and equipment) when possible. If they must be shared, clean and disinfect shared workspaces and work items before and after use.
- Using disinfectants that are EPA-approved for use against the virus that causes COVID-19.
- Providing EPA-registered disposable wipes for employees to wipe down commonly used surfaces before use.
- Following the manufacturer’s instructions for all cleaning and disinfection products (e.g., safety requirements, PPE, concentration, contact time).
- Ensuring there are adequate supplies to support cleaning and disinfection practices.
C. If an employee is confirmed to have COVID-19 infection:
- Inform employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Please see further information on protecting the privacy of persons with COVID-19 from the California Department of Fair Employment and Housing.
- Temporarily close the general area where the infected employee worked until cleaning is completed.
- Conduct deep cleaning of the entire general area where the infected employee worked and may have been, including breakrooms, restrooms, and travel areas, with a cleaning agent approved for use by the EPA against coronavirus. It should ideally be performed by a professional cleaning service.
- Any person cleaning the area should be equipped with the proper PPE for COVID-19 disinfection (disposable gown, gloves, eye protection, mask, or respirator if required) in addition to PPE required for cleaning products. See below for further information on PPE.
D. Employee Training
- General description of COVID-19, symptoms, when to seek medical attention, how to prevent its spread, and the employer’s procedures for preventing its spread at the workplace.
- How an infected person can spread COVID-19 to others even if they are not sick.
- How to prevent the spread of COVID-19 by using cloth face covers, including:
CDC guidelines that everyone should use cloth face covers when around other persons.
- How cloth face covers can help protect persons around the user when combined with physical distancing and frequent hand washing.
- Information that cloth face covers are not protective equipment and do not protect the person wearing a cloth face cover from COVID-19.
- Instructions on washing and sanitizing hands before and after using face coverings, which should be washed after each shift.
- Cough and sneeze etiquette.
- Washing hands with soap and water for at least 20 seconds, after interacting with other persons and after contacting shared surfaces or objects. (Employees working in food facilities (as defined must be permitted to wash their hands every 30 minutes and additionally, as needed.
- Avoiding touching eyes, nose, and mouth with unwashed hands.
- Avoiding sharing personal items with co-workers (i.e., dishes, cups, utensils, towels.
- Providing tissues, no-touch disposal trash cans and hand sanitizer for use by employees.
- The hazards of the cleaners and disinfectants used at the worksite. Wearing PPE (such as gloves).
- Ensuring cleaners and disinfectants are used in a manner that does not endanger employees.
RELIEF PROGRAMS FOR EMPLOYEES AFFECTED BY COVID-19 OR SHELTER IN PLACE
- $61 million Verdict Two Lebanese-American employees subjected to outrageous racial and ethnic discrimination and harassment.
- $20 million Verdict Former timeshare sales representative was wrongfully terminated for reporting time share fraud on the elderly.
- $6.5 million Settlement Lawsuit brought by motorcyclist severely injured in accident caused by dangerous roadway condition.
- $6 million Settlement Wrongful death car accident case filed on behalf of family of woman killed in a head-on collision when defendant's car crossed the center line.
- $4.2 million Settlement Settlement reached with City of San Francisco for teen walking in crosswalk who suffered permanent brain injury after being struck by vehicle. City officials were informed intersection was dangerous and failed to make it safer.