When the coronavirus outbreak was declared a pandemic in March 2020, businesses scrambled to adapt as much of the country began to shut down. Workplace procedures were abruptly modified, and many companies shifted to remote work. Now, employers are deciding how to respond to new guidance as COVID-19 cases decline and economies reopen.
On June 15, California Gov. Gavin Newsom fully reopened the state's economy. "California is turning the page on this pandemic, thanks to swift action by the state and the work of Californians who followed public health guidelines and got vaccinated to protect themselves and their communities," he said. "We are lifting the orders that impact Californians on a day-to-day basis while remaining vigilant to protect public health and safety as the pandemic persists."
The Golden State lifted physical distancing requirements, capacity limits for businesses, and many COVID-19 testing and quarantining requirements. However, the state still asks that people test and quarantine if they feel sick, are not fully vaccinated or are traveling internationally.
The state also updated mask rules to align with guidance from the U.S. Centers for Disease Control and Prevention (CDC), which allows fully vaccinated people to discontinue the use of masks in many situations. But the state still has COVID-19 safety requirements in place for schools, child care providers and "mega events"—indoor events with 5,000 or more attendees and outdoor events with 10,000 or more attendees.
Employers also must comply with local ordinances and rules set by the California Division of Occupational Safety and Health (Cal/OSHA), which regulates workplace safety.
Be aware that policies for customers could differ from policies for employees. For instance, retailers in California eventually might drop mask requirements for customers, while keeping these requirements for employees, said Ilana Morady, an attorney with Seyfarth Shaw in San Francisco.
Cal/OSHA and Local Regulations
Employers should carefully follow evolving Cal/OSHA rules that apply to the workplace. Notably, California's Occupational Safety and Health Standards Board recently revised its COVID-19 Emergency Temporary Standards and released new FAQs for employers. "The revised regulations reflect the state's latest COVID-19 public health guidance," according to Cal/OSHA. "The updates include changes to face coverings and physical distancing requirements."
In addition, local governments across California have been working to revise their regulations. Santa Clara County, for example, enacted a new local regulation following the CDC guidance. The order requires businesses to determine the vaccination status of all employees. For purposes of workplace policies, employees who decline to state whether they received the vaccine will be regarded as unvaccinated.
The Los Angeles County Department of Public Health noted that workplaces must follow Cal/OSHA standards. "[A]t a minimum, unvaccinated individuals are required to wear a face mask when indoors at workplaces," according to the county website. "Offer employees who are not vaccinated respirators which offer more protection for the wearer than cloth face masks or surgical masks."
Regardless of vaccination status, masks are required statewide on public transit, at schools and child care sites, in health care settings, and in certain other places.
Workplace Safety Policies
Businesses must comply with applicable federal, state and local requirements. Despite recent changes, employers should avoid hastily revising their workplace policies. Within certain parameters, however, employers have some flexibility when developing policies, according to Walter Stella, an attorney with Cozen O'Connor in San Francisco.
When crafting mask and distancing policies, employers should consider their type of business and their work environment, attorneys said. Some questions to consider: Do employees have their own offices? Do employees work in crowded factories? Do employees interact with customers?
Additionally, there are important procedures to follow for mandatory vaccination policies, noted Jennifer Rubin, an attorney with Mintz in San Diego. According to guidance from the U.S. Equal Employment Opportunity Commission (EEOC), businesses can require all employees in the workplace to be vaccinated for COVID-19. However, there are legal exemptions for those who are unvaccinated because of medical or religious reasons.
Additionally, the EEOC said employers are permitted to offer incentives for employees to be vaccinated, as long as there's no coercion.
If employers do require vaccination, there are legal issues to keep in mind. Vaccination status isn't a protected category under federal and most state laws. But Guillermo Tello, an attorney with Clark Hill in Los Angeles, noted that workplace vaccination policies could lead to discrimination claims based on the various protected categories.
A business also could be sued by an employee who claims the company isn't doing enough to protect workers from the virus, observed Jack Schaedel, an attorney with Ford Harrison in Los Angeles.
Key Takeaways for Employers
As federal, state and local rules and guidelines change, attorneys recommend that employers take certain actions. For example, employers should designate someone in the organization to monitor local regulations, according to Tello and Schaedel.
Bryan Hawkins, an attorney with Stoel Rives in Sacramento, Calif., recommended that employers check the minutes of local government meetings for updates on safety protocols. They also should clearly explain policies to employees and ask workers to discuss questions or concerns with a supervisor, he said.
Additionally, attorneys said employers should:
- Stay up-to-date with Cal/OSHA's general and industry-specific mandates.
- Stay up-to-date with state and local orders.
- Develop workplace policies with help from legal counsel.
- Follow legal requirements regarding employee medical information.
- Treat all unvaccinated employees in a consistent manner.
- Consider the option of continuing with remote work for some or all employees.
If local regulations vary and the company has offices in multiple locations in California, employers should carefully evaluate their options. Some attorneys recommend following the strictest set of rules that apply to the company, while others say it's fine to have varying workplace policies tailored to local rules.
If employees travel between locations with different requirements, Tello said, it's advisable to comply with the most restrictive local regulations.
Toni Vranjes is a freelance business writer in San Pedro, Calif.