With COVID-19 vaccines reaching more Californians, it's natural for employers that have been operating remotely to think about bringing workers back to the physical workspace. But sorting out the details of how and when to reopen the worksite will take some planning.
California's first-in-the-nation stay-at-home order, which was issued in March 2020, required nearly 40 million people to lock down, according to the Associated Press. The state has recorded more than 3.5 million virus cases and 58,000 deaths, both of which are the largest totals in the country.
Vaccine rollout in California was initially slow but is picking up speed. Currently, the state reports that about 23 percent of Californians have received at least one vaccine dose and all residents age 16 and older will be eligible for a vaccine on April 15.
As vaccination rates increase, many employers are making plans to allow at least some employees to return to the worksite. But after working from home for the last year, employees are mixed on whether they want to return and under what circumstances. Even a hybrid return-to-work policy could be a hard sell for some. This type of arrangement allows employees to report to the worksite two or three days a week on a staggered schedule and spend the remaining time working from home.
"As much as it was a big ask to get people to work remotely, it's an even bigger ask to get somebody back" in the physical worksite, said Walter Stella, an attorney with Cozen O'Connor in San Francisco.
Most companies are preparing for a gradual return. "This won't be like the flip of a switch," he said.
Employment law attorneys say the key is transparent decision-making, clear and consistent communication, and, above all, flexibility.
Keeping Up with Guidelines
Employers should continue to monitor guidance from the U.S. Centers for Disease Control and Prevention (CDC), California's Department of Fair Employment and Housing, and the California Division of Occupational Safety and Health (which is known as Cal/OSHA and has guidance by industry).
Updates may be challenging to track, particularly for employers who operate in multiple locations, as guidelines from individual counties may differ on what kind of operations are permitted.
Some county health regulators, such as the San Francisco Department of Public Health, have a dizzying array of highly detailed return-to-work procedures that employers must meet before they can reopen, including rules for social distancing, break areas, drinking fountains, HVAC systems, quarantining, travel limits and what's acceptable on mass transit.
Adapting the Physical Workspace
Many employers are making changes to the physical workspace, such as creating controlled or separate entrances and exits into worksites and dividing worksites into zones or designating cohorts that limit large numbers of people mingling, said Karen Tynan, an attorney with Ogletree Deakins in Sacramento, Calif. Extra attention will need to be paid to common areas, including lunch and break areas, and increased sanitization will be necessary for the workplace as a whole. Even if not required, employers may want to check HVAC systems to ensure they are delivering maximum air exchange to create the safest environment possible, Tynan suggested.
At least initially, employers may want to conduct daily health checks that include taking temperatures and inquiring about possible symptoms. They should consider developing a method for identifying possible COVID-19 exposures and conducting contact tracing, as well as handling related leaves of absence. Employers will also need to decide if they want to mandate regular COVID-19 testing.
Additionally, companies will need to train managers on how to deal with resistance to safety policies, such as mask mandates.
"Going back to work is not going back to normal," Melissa Peters, an attorney with Littler in Walnut Creek, Calif.
"Don't make promises or guarantees." In that vein, much of the return to the physical workplace involves managing expectations, she added.
Talking to Employees
Bringing employees back will take careful planning and flexibility. Employers should have policies in place, but the art of returning to work will be knowing when to make exceptions.
Effective communication is critical. Stella suggested surveying employees. "Ask your workforce what they want," he said. "You can create buy-in."
If employees don't want to return to the worksite, employers should find out why. A worker may have a qualified disability, prompting the employer to work with the employee to determine if a reasonable accommodation can be made.
Companies may choose to make accommodations they aren't legally required to make, but they should consult counsel first, Stella recommended. "It's all about an ounce of prevention. The game changed on us, and the rules remained the same. Most of our employment laws were written without a pandemic in mind." Employers may be thinking they are doing the "right thing," but may be creating legal risk.
"Strive for consistency," Stella said. "If you are going to formulate a policy, be consistent in applying it. It is inconsistency that drives litigation risk." But he noted that consistency doesn't mean rigidity or inflexibility.
Understanding the varying socioeconomic impacts of the pandemic on a diverse workforce also will be key, as well as continued communication with employees about how they are faring, even in a hybrid work environment.
Many employees have caregiving and child care responsibilities as a result of the pandemic. Tynan noted that some employees may have the resources to handle additional caregiving duties while others may not.
Above all, realize that things may change, and companies will need contingency plans if there is a surge in community cases or an outbreak at the workplace. "We are in a promising trajectory, but it is not static, it is very dynamic," Tynan said.
Peters noted that the process will be incremental. "We will likely be moving forward and scaling back constantly."
Susan Kostal is a freelance writer and editor in San Francisco.