California Employers May Need to Adjust Policies During COVID-19 Resurgence

By Toni Vranjes August 27, 2021
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Restaurant with sign requiring masks

Many government agencies have returned to a more cautious stance on safety precautions following the recent COVID-19 surge. For their part, California employers need to be ready to adapt to changing conditions and update their policies accordingly.

Early last year, COVID-19 began to devastate the United States in multiple waves. Then in late 2020, the arrival of vaccines brought hope for many. Recently, though, the highly transmittable delta variant of the virus has created anxiety once again, and the most severe outcomes are primarily affecting the unvaccinated.

Here's what California employers need to know as the coronavirus pandemic persists.

Guidance from Different Agencies

2021 has brought a whirlwind of change on COVID-19 safety guidance. In the spring, many federal, state and local leaders started lifting restrictions. In a move that grabbed the nation's attention, the U.S. Centers for Disease Control and Prevention (CDC) announced in May that masks were no longer necessary for fully vaccinated people in many settings.

On June 15, California Gov. Gavin Newsom completely reopened the state's economy. State mask mandates for vaccinated individuals were dropped, and many local jurisdictions aligned their rules with those of the state.

Shortly thereafter, the California Division of Occupational Safety and Health (Cal/OSHA) discontinued most workplace mask requirements for fully vaccinated employees.

Then came the delta-driven COVID-19 surge—and a return to stringent protocols.

In July, the CDC issued new guidance, stating that both vaccinated and unvaccinated people should wear masks in certain indoor public areas. This recommendation applies to regions with substantial or high COVID-19 transmission.

The California Department of Public Health (CDPH) now recommends indoor masking for everyone and requires masking for unvaccinated people in many indoor public settings regardless of the transmission rate. Many localities in the state have reinstated even stricter universal mask requirements for indoor public spaces. These local jurisdictions include Los Angeles County and certain Bay Area counties. Employers in these jurisdictions must comply with the local mandates.

Meanwhile, a Cal/OSHA subcommittee is evaluating new data to determine if more workplace protections are needed. This summer, COVID-19 outbreaks at California workplaces increased after several months of declining cases.

According to a presentation by state health officials at one recent Cal/OSHA subcommittee meeting, the number of COVID-19 outbreaks decreased every month from January 21 to June 21. Since June, however, new COVID-19 cases have been on the rise.

Cal/OSHA potentially could adopt stricter workplace regulations this fall, said Alka Ramchandani-Raj, an attorney with Littler in Walnut Creek, Calif. She serves as co-chair of the firm's workplace safety and health group.

In the meantime, Cal/OSHA might clarify some issues in online FAQs, she noted.

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Adapting to Change

Cal/OSHA requires employers to have not only a written COVID-19 prevention plan but also a strategy for implementing and enforcing the plan.

From Cal/OSHA's standpoint, California employers must do whatever they can to keep employees safe. This involves regularly re-evaluating workplace procedures as new information is released, according to Ramchandani-Raj.

For example, businesses should monitor whether COVID-19 cases are increasing in their workplace, and they should stay up-to-date on any new guidance from their local health department.

If an employer is covered by a local order mandating universal mask wearing, then it must comply with that. But what is the best course of action for California employers that aren't subject to a local mask mandate?

If the employer is in a region with significant COVID-19 transmission, the company should strongly consider requiring all employees to wear masks, said Ilana Morady, an attorney with Seyfarth Shaw in San Francisco.

Before finalizing their policies, however, businesses should evaluate many factors to decide if they should require universal masking, she said.

Those factors include:

  • The rate of community transmission.
  • Whether employees work with the public.
  • Whether employees work near other employees.
  • The percentage of the workforce that is vaccinated.

"It makes a lot of sense for employers to evaluate and decide based on the unique circumstances of their workplace," Morady observed.

Also, companies should encourage or require employee vaccination, said Hannah Sweiss, an attorney with Fisher Phillips in Los Angeles.

Although vaccine mandates help protect employees, businesses might face challenges when enforcing these policies, according to Karina Sterman, an attorney with Greenberg Glusker in Century City, Calif.

Businesses will need to explore reasonable accommodations with employees who decline to get vaccinated because of pregnancy, a disability or a sincerely held religious belief.

Workplace Policies and Practices

When drafting COVID-19 policies for the workplace, employers should include language allowing for additional safety measures, according to Sweiss. This provides flexibility to alternate between more restrictions and fewer restrictions, depending on current conditions during the public health crisis.

As the COVID-19 situation changes, effective communication with employees is key, Sweiss added. Explain to them that workplace COVID-19 procedures may shift, depending on the situation.

If safety procedures are going to change, the company must not only notify employees but also provide any necessary training, Morady said.

If changes are needed, one option is to implement a temporary policy, according to Ramchandani-Raj. When doing so, inform employees that the temporary policy will remain in effect until further notice.

Toni Vranjes is a freelance business writer in San Pedro, Calif.

[Want to learn more about California employment law? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]

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