A Safe Return to Work from an Employment Law Perspective
The SDCBA Labor and Employment Law Section hosted a timely seminar last month on Navigating a Safe Return to in-person work in light of the global pandemic. The webinar featured attorneys Arcelia N. Magaña and Sandy McDonough, who presented and shared insights on recent changes to the law and related trends. If you missed it, have no fear. Below are some main takeaways from the event.
Revised Emergency Temporary Standards
A revised version of California’s Covid-19 Prevention Emergency Temporary Standards became effective on June 17, 2021. The standards were edited to take into account updated federal and state guidance on the disease as well as the fact vaccinations reduce the risk of workplace transmission. The new standards require unvaccinated workers to wear face coverings at work but do not require fully vaccinated employees to do so indoors. Most employers, however, must document employee vaccination status. Employers also must provide a respirator (such as a N95 mask) to unvaccinated employees who work indoors with others if they ask for one, and training must be provided on proper use. For those who must wear a mask indoors, scarves, bandanas, and single-layer cloth coverings are not permitted. Face coverings are not required outdoors regardless of vaccination status, with some exceptions.
Notably, since last month’s webinar took place, the Centers for Disease Control and Prevention altered its position on masks and now recommends that vaccinated persons wear masks indoors if they live in areas with significant or high spread. Some counties around California have implemented their own indoor mask mandates as variant cases rise.
Another notable change in the standards is that fully vaccinated employees do not need to be tested or quarantined after close contact with a Covid-positive individual, unless that employee is symptomatic or there is a major outbreak at the work location. The new rules also ease physical distancing requirements.
Leaves of Absence Due to Covid-19
Employers must continue to provide compensation and benefits if an employee is excluded from work due to a work-related Covid-19 exposure. But this is only the case if the employee is able and available to work. In other words, an employer need not provide exclusion pay if the employee received disability benefits due to sickness or was covered by workers’ compensation and received disability benefits. Employers do not need to pay employees if the exposure was not work-related.
Beginning in March 2021, California employers with 26 or more employees in the country had to start providing in-state employees with 80 hours of Covid-19-related paid sick leave. Employees can use this supplemental sick leave if they are required to quarantine pursuant to an order of the government or health care provider, are taking care of a family member under a similar quarantine order, and/or while they receive the Covid-19 vaccine or suffer from vaccine side effects. Although this law went into effect in March, this supplemental paid sick leave law is retroactive to January 1, 2021 and as of now is set to expire on September 30, 2021. Other state sick leave laws could also apply to employees with Covid-19.
Other Covid-19 Workplace Issues to Consider
Due to the widespread movement to “work from home,” employers are receiving new accommodation inquiries, such as requests for decreased office hours, alternative work assignments and schedules, or exemptions from wearing a mask. In response to these requests, it is important to follow the law but also be sensitive to the times, consider employee morale, and tread thoughtfully in uncharted territory. Employers should ask for the requests in writing and analyze them individually to determine what is feasible, whether it’s teleworking, a leave of absence (paid or unpaid), or perhaps additional safety precautions in the workplace.
Unique wage and hour issues are also on the rise. Employers continuing to allow employees to work from home must be careful to adequately reimburse them for necessary expenses (telephone, Internet, etc.), but should also consider whether those costs remain “necessary” as physical offices reopen. Additionally, employers should compensate employees for time they spend engaging in necessary medical inquiries such as temperature checks and symptom attestations. If an employee is sent home as a result of those inquiries, employers need to provide reporting time pay.
As we transition slowly back towards normalcy, it is important to remain vigilant and comply with the often-changing Covid-19 rules. Feel free to reach out to the SDCBA Labor and Employment Law Section if you would like further discuss safely returning to the workplace.