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Employer Response to COVID-19 in the Workplace

From Navigating COVID-19

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Once workplaces have reopened and employees have returned to work (and have begun interacting with the public), more coronavirus infections might result. Employers must take certain actions to protect exposed employees, ensure that infected employees isolate and quarantine, and meet government reporting requirements in the event of an outbreak. Questions abound as to when an exposed employee may return to work, and whether additional precautions must be taken. The California Department of Public Health has published guidelines with links to government agencies' requirements for employers to manage coronavirus in the workplace. The guidance applies to an outbreak as defined below, but also is useful for individual workers who test positive.


Outbreak Management in the Workplace

"This guidance," according to the state, "is not intended for use in managing or preventing outbreaks in healthcare, congregate living settings, or other workplaces where the California Aerosol Transmissible Diseases (ATD) standard (title 8 section 5119) applies." Here are questions other employers might have in navigating coronavirus in the workplace.

How should employers should prepare for identifying cases of COVID-19?

Designate a coronavirus coordinator responsible for implementing the company's virus prevention and disinfection plan it established when it re-opened. The coordinator also should be responsible for educating workers on COVID-19 symptoms, company policies regarding quarantine when experiencing symptoms or following a positive test, and company benefits if they are impacted by the virus. The coordinator must be familiar with government guidance on health and safety requirements and return-to-work timelines for affected employees.

To whom should employers communicate information about known or suspected coronavirus outbreaks?

Employers are required to notify the local health department when there is a known or suspected outbreak in their workplace. An outbreak is defined as three or more laboratory-confirmed cases of COVID-19 in employees from different households within a two-week period. The health department where the workplace is located must be notified first. After that, the employer must notify the health departments where the affected employees live, if they are different. The department advising the workplace will direct the employer how to handle the outbreak. Typically, that department will request a roster of all workers, and information related to the workers who are infected.

Employers should notify union representatives, if applicable, and notify the employers of contracted and temporary workers of the outbreak.

The employer need not confirm that the coronavirus cases originated in the workplace before notifying the local health department. Although reporting an outbreak is required, the guidelines encourage employers also to contact that department about any positive cases in the workplace regardless of how the virus was contracted.

What about reporting workplace COVID-19 cases to Cal/OSHA?

According to the state's Department of Public Health, employers are required to report to the local Cal/OSHA district office "any serious injury, illness or death occurring in any place of employment ... immediately but not longer than 8 hours after the employer knows. For COVID-19 this includes inpatient hospitalizations and deaths among workers." Reporting is required even if work relatedness is unknown. See the section, OSHA Requirements — Recording and Reporting COVID-19.

To control further spread, how do employers identify additional virus cases among workers and their close contacts?

It's a good idea to test all workers following an outbreak. If such widespread testing is not feasible, available or not recommended by the local health department, employers should consider contact tracing and quarantining some or all workers. The local health department will work with the employer to recommend ways to control spread. See the section, Contact-Tracing Investigations.

Should employers temporarily suspend operations due to a COVID-19 infection in the workplace? Businesses may elect to shut down facilities, operations or processes when a case of COVID-19 or an outbreak occurs. Factors determining whether a closure or partial closure is required include the size of the workforce, the number of people affected, the vulnerability of consumers and workers who could be affected, and the disease spread in the community at large.

The local health department and Cal/OSHA have the authority to shut down businesses, partially or completely, while the infection or outbreak is investigated or managed.

How should employers notify and provide instruction to its workers?

Employers must maintain the confidentiality of workers infected or exposed to the virus. The public health guidance requires some employees to be notified, and Assembly Bill 685 expands notification requirements to all workers in the same workplace as the infected individual. To learn more about employee notification requirements, see the subsection Cal/OSHA Imposes New Notice and Reporting Obligations for COVID-19 Workplace Exposure in the section OSHA Requirements — Recording and Reporting COVID-19.

Close contacts of the infected worker should be instructed about how to get tested, monitor symptoms and quarantine at home. The Department of Public Health notes that in some outbreaks, workers who were never symptomatic and had no close contact with any of the employees who tested positive may continue to work as long as the employer has implemented all control measures as recommended by public health authorities, including the local health department, Cal/OSHA and the U.S. Centers for Disease Control and Protection (CDC), and the employee doesn't develop symptoms of the virus.

How do employers determine when it's appropriate for cases and contacts of cases to return to work?

Employers should consult with the local health department and the most recent CDC guidance to find out when a confirmed case or a close contact of a confirmed case may return to work. Note that the CDC defines "close contact" as "Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated."

Minimum criteria for return to work apply to these categories of cases following either a positive test or close contact with an infected worker:

Symptomatic Positive: At least 10 days have passed since symptoms first appeared, and at least 24 hours have passed since the last fever without the use of fever-reducing medications, and symptoms have improved.

Asymptomatic Positive: At least 10 days have passed since the date of the first positive COVID-19 test. If symptoms develop, standards for Symptomatic Positive apply.

Symptomatic Negative: Workers who have symptoms but have tested negative should use the same criteria for return to work as Symptomatic Positive workers.

Asymptomatic Negative: Workers are advised to quarantine at home for 14 days after the last known close contact with the infected worker. Even after testing negative, symptoms can develop within 14 days after exposure. The local health department may allow earlier return to work for an employee in a critical infrastructure industry, especially if no alternate staff can perform the same role.

Symptomatic Untested: Testing is recommended, but if the worker cannot be tested, the same criteria for Symptomatic Positive workers apply.

Asymptomatic Untested: Workers should be quarantined at home for 14 days after the last known close contact with the infected employee. Testing is recommended, but the local health department may allow the employee to continue working if he or she is in a critical infrastructure industry, especially if no alternate staff can perform the same role. Workers who develop symptoms while in quarantine should use the same return-to-work criteria as a Symptomatic Positive worker.

What sanitation measures should be taken after workers with COVID-19 have been at the workplace?

Workers should not enter the work areas of infected employees until those spaces have been cleaned and disinfected using products approved by the EPA for COVID-19. Enhanced cleaning and disinfection of work areas should be ongoing, including identifying and regularly disinfecting high-touch surfaces throughout the workplace, such as door knobs, handrails, elevator buttons, etc.

Workers shouldn't share headsets or other equipment that comes in contact with the mouth, nose or face. Workers responsible for cleaning should be trained in the safe use of cleaners and disinfectants, and provided necessary protective equipment to do so.

How can employers stay current on new and updated guidance for their specific industries?

The California Department of Public Health website includes links to the landing pages of various governmental agencies that provide specific guidance for specific industries.


Vaccinations and the Workplace

The FDA has authorized the emergency use of COVID-19 vaccines made by various pharmaceutical companies. The CDC encourages vaccination, and many employers are deciding whether to require the vaccine, incentivize employees to get it, or take no position.

The CDC has issued guidance on workplace vaccinations that enumerates factors employers should consider when determining whether to implement a workplace vaccination program. It also describes ways to increase vaccine acceptance in the workforce. The CDC takes no position about the legality of mandating vaccinations. It states: "Whether an employer may require or mandate COVID-19 vaccination is a matter of state or other applicable law." The CDC guidance can be found here.

The CDC guidance says that employers should consider an on-site workplace vaccination program if they have:

  • a large number of workers on-site with predictable schedules;
  • the ability to enroll with the local jurisdiction's immunization program as a vaccination provider, including appropriately training staff or using an enrolled vaccination provider;
  • a location with enough space to host a vaccination clinic while maintaining social distancing through the entire process, from screening to post-vaccination observation.

The CDC said employers should consider off-site vaccinations if they:

  • are small or midsize organizations that lack the resources to host a vaccination clinic;
  • have mobile workers who frequently move from one job site to the next;
  • have workers with highly variable schedules;
  • have a majority of workers who prefer vaccination in a community clinic over an employer-run clinic.

Note: The CDC issues guidance on employer-provided vaccination, but does not opine on the legality of mandating vaccines, clearly stating that state law governs the legality of employer-required vaccines.

The CDC is concerned about vaccine reluctance among some individuals. To increase vaccine acceptance, it recommends that employers:

  • Appoint trained "vaccine ambassadors" to provide information to concerned employees, relay personal stories about the vaccines, and answer their questions.
  • Use creative communication to promote vaccinations, including social media, email, posters, and signs.
  • Hold virtual town hall-type meetings with employees where management and experts share facts about the vaccine.
  • Ensure that the leadership team and managers get the vaccine and describe their experiences. The CDC reminds employers that sharing of experiences should be voluntary.

These measures apply to mandating vaccination, incentivizing employees to take the vaccine, and voluntary vaccination programs.

Mandating Vaccinations

In December 2020, the federal Equal Employment Opportunity Commission (EEOC) weighed in on vaccination in the workplace. That guidance answers some workplace vaccination questions. In March 2021, the California Department of Fair Employment and Housing (DFEH) issued its guidance; generally, it concurs with the EEOC.

Both the EEOC and DFEH state that employers may encourage or require COVID-19 vaccinations, but policies must comply with the Americans with Disabilities Act (ADA), Title VII, the Fair Employment and Housing Act (FEHA), and other workplace laws.

In addition to ensuring that they follow all workplace laws, employers with a unionized workforce must negotiate with their unions before implementing any vaccination policy.

Guidance from the EEOC and/or the DFEH concerns:

  • Vaccinations are not medical examinations: The EEOC says that a vaccination itself is not a medical exam under the ADA. So, regardless of whether an employer’s policy is mandatory or voluntary vaccination, such policy is not prohibited by the ADA.
  • Prescreening Questions: Because prescreening questions for the vaccination could elicit information about a disability, to avoid violating the ADA, such questions must be job-related and consistent with business necessity, at least in the case of a mandatory vaccination program administered by an employer. Neither the EEOC nor the DFEH offers examples of vaccine-related questions that would be appropriate under the "job related/business necessity" standard. If an independent third party is administering the mandatory vaccine without a contract with the employer (such as a pharmacy or other health-care provider), the job relatedness and business necessity restrictions of the questions aren't applicable.

To avoid potential ADA violations by asking disability-related questions when administering vaccines, employers who require workers to be vaccinated should consider sending them to neutral third-party facilities, or request that they get the vaccine from a health-care provider of their choice.

If an employer-administrated vaccination is voluntary, prescreening questions are acceptable if the employee’s decision to answer them also is voluntary.

The EEOC and the DFEH each have issued guidance previously about what questions an employer may ask an employee about COVID-19. For example, it is proper to ask employees about their COVID-19 symptoms, but improper to ask about pre-existing medical conditions that might elicit medical information about disabilities. See the EEOC guidance here and the DFEH guidance here.

Vaccination Proof May Be Required

The ADA does not prohibit an employer from requiring proof of vaccination, as this is not a disability-related inquiry. Related questions, however, could violate the ADA. An example is asking an employee why she or he didn't get vaccinated, because the answer could disclose a disability. Remember, medical inquiries of employees are permitted under the ADA only if they are job related and necessary to conduct business. If employers require proof of vaccination, they must advise employees not to provide any other medical information.

Information Gathered Must Be Kept Confidential

Medical information received by an employer in connection with prescreening or vaccination must be kept confidential.

Objections Based on Grounds of Disability or Religion

Under DFEH guidance, an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection as long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic. Employers also must provide reasonable accommodations related to disability or sincerely held religious beliefs or practices, and must not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

If an employee objects to vaccination on religious or disability grounds, the employer's obligation is to discuss with the employee whether a reasonable accommodation is possible.

Disability Accommodation

Employers should consider accommodations such as teleworking and reasonable procedures and safeguards to enable an employee to work without endangering himself or herself or others. Face masks, social distancing, barriers, and other protections currently used to keep workers safe might suffice.

In addition, as part of the discussion, employers should ask the employees how they believe they can be accommodated, and involve their health-care providers, if necessary.

If an employee with a disability objects to the vaccine, the employer must accommodate him or her unless it would cause an undue hardship.

If an employer can show that there is no accommodation to address the threat of having an unvaccinated employee in the workplace, the worker fairly might be excluded from the workplace. Whether exclusion is proper will depend on the type of job the employee performs, the type and number of personal interactions with co-workers and the public, and other job-specific factors.

Before terminating an employee who cannot be vaccinated because of a disability, employers should ensure that all types of accommodations are considered, including temporarily or permanently transferring the employee to a different position.

The burden of proof on employers is high when seeking to exclude workers from the work site. Employers are strongly encouraged not to terminate disabled employees who cannot be vaccinated before consulting with legal counsel –– the risk of legal exposure is high.

Religious Accommodation

The EEOC and the DFEH require an employer to accommodate an employee’s sincerely held religious belief, practice, or observance, unless it would cause an undue hardship to the business. The courts have said that "undue hardship" is created by an accommodation that has more than a de minimis, or very small cost or burden on the employer.

The definition of religion is broad. It protects religious beliefs and practices of which employers may not be aware. So the employer should assume that an employee’s request for religious accommodation is based on a sincere belief. If the employer has an objective basis for questioning the religious nature or the sincerity of the belief, practice, or observance, it may request additional supporting information.

Generally, a reasonable accommodation is one that eliminates the conflict between the religious belief or practice and the vaccination requirement. It might include job restructuring, job reassignment, or modification of work practices. Be sure to involve the employee in the process of considering possible accommodations.

The DFEH is clear that unless specifically requested by the employee, an accommodation related to religious belief is not considered reasonable if it results in a segregation of the worker from other employees or the public.

An employer might argue that the unvaccinated employee poses a direct threat to others in the workplace, but that's a difficult argument to win, and requires compelling evidence given that the DFEH believes that segregating employees from others based on religious belief is not reasonable.

Always consult with legal counsel before terminating an employee who requests a disability or religious accommodation for a mandated vaccine.

No Requirement to Accommodate Fear-Based Moral, Ethical, or Political Objections to Vaccinations

If the employer requires employees to be vaccinated against COVID-19, and a worker demurs because she or he fears that the vaccine isn’t safe, but has no disability or sincerely held religious belief for declining the vaccination, the EEOC and DFEH support that the employer is not legally required to accommodate him or her.

If an employer requires vaccinations and a worker objects but does not request a reasonable accommodation related to a disability or religious creed, an employer is permitted to enforce its reasonable disciplinary policies and practices. But the EEOC and the DFEH prohibit employers from retaliating against an employee for engaging in protected activity.

No Retaliation

The EEOC and DFEH are clear: An employer may not retaliate against someone who alleges that the employer’s vaccination policy intentionally discriminates on the basis of race, national origin, or other protected characteristic, or has a disparate impact on a protected group.

Employees who make complaints are protected from retaliation even if their objections or request for accommodation or vaccine waiver ultimately are found to be without merit. Any adverse action taken by an employer after an employee makes a complaint or asks for an accommodation based on a protected characteristic could be considered retaliatory, even if the worker isn't legally entitled to the accommodation.

Employers Must Pay All Costs Associated with Mandatory Vaccination Policies

An employer that mandates vaccinations must pay for all costs associated with an employee receiving the vaccine. This includes allowing employees to get vaccinated during the workday, and paying their wages for the time it took to be vaccinated. Employers also must pay for out-of-pocket costs such as vehicle mileage or public transportation an employee takes to and from the vaccination site.

Legal Challenge to Mandating Vaccines

A lawsuit has been filed challenging employers' mandatory vaccination policy. The complaint alleges that the FDA's emergency use authorization of the various COVID-19 vaccines requires that the person receiving one be advised of the benefits and risks, and have the right to refuse the vaccine. Without the required disclosures and the opportunity to refuse the vaccine, the plaintiffs allege, the employer has violated federal law. We will update this section as the case makes it through the court system.

Incentivizing Vaccinations

Implementing vaccine mandates can lead to difficult decisions involving employees who refuse, and to potential legal land mines associated with accommodation requests by those who are disabled or hold sincerely held religious beliefs. So employers should consider ways to incentivize employees to get vaccinated. In addition to the measures the CDC recommends to increase vaccine acceptance, cited above, employers might want to:

  • Develop vaccination education campaigns.
  • Make obtaining the vaccine as easy as possible.
  • Cover all costs associated with getting the vaccine.
  • Offer bonuses, such as gift cards.
  • Provide paid time off for employees to get the vaccine and recover if they experience side effects.


EEOC Issues Updated Guidance Addressing Vaccine Incentives in May 2021

On May 28, 2021, the EEOC updated its guidance regarding vaccine incentives. The update also clarifies issues related to mandatory vaccine requirements in the workplace.

Incentives for employees voluntarily providing proof of vaccine

The EEOC confirms that requesting proof of vaccination is not a disability-related inquiry under the Americans with Disabilities Act (ADA) and does not seek information protected by the Genetic Information Nondiscrimination Act (GINA). So, employers may offer incentives to employees who voluntarily provide proof that they're vaccinated. Because the employer is asking only for proof of vaccination, not prevaccination medical questions, the EEOC believes employees won't feel pressured by the incentive.

Incentives for employees who voluntarily receive the vaccine provided by the employer

When the employer provides or administers the vaccine, employees probably will be required to disclose protected medical information as part of the prevaccination inquiry. So the EEOC guidance states that an incentive (whether it is a reward or penalty) may be offered as long as it "is not so substantial as to be coercive." A reward incentive that is too large could make employees feel pressured to disclose private medical information, and the undue pressure might violate the ADA.

Incentives to employees to have family members who voluntarily receive the vaccine provided by the employer

The EEOC states that employers may not offer incentives to employees in exchange for their family members to receive a vaccine provided by the employer or its agent –– but employers may offer incentives to employees to provide documentation or other confirmation that their family members received a vaccine from their own health-care provider. Employers must not require employees to have family members vaccinated and must not penalize employees if their family members decide not to get vaccinated.

The EEOC doesn't define or give examples of possible incentives, nor does it define when an incentive would be considered "too large."

Caution: At this point, California's Department of Fair Employment and Housing (DFEH) hasn't issued guidance on incentivizing vaccines, so employers should be cautious when making incentive decisions. They should consult counsel before implementing such a program.

Be mindful that financial incentives can be tricky. It's unclear how cash and gift cards are perceived within the ADA and Fair Employment and Housing Act (FEHA), and whether the EEOC or DFEH would consider such incentives contrary to the law. We will update this page if the EEOC or DFEH provides guidance on cash or gift incentives.

Employers considering cash and gift incentives should consult their tax advisors to determine if they should be considered taxable income to employees. Cash incentives or nondiscretionary bonuses also might implicate wage-and-hour laws affecting nonexempt employees' regular rate of pay for the pay period in which the bonus is received. It could have the unintended consequence of increasing overtime pay, creating unexpected payroll expense.

Note that employers required to provide California supplemental pay for sick leave already are required to provide employees for time off not only to get vaccinated, but to care for adverse effects of the vaccine. See the section California Enacts New Supplemental Sick Leave Mandate Effective Immediately.


Employer’s Liability and Exposure for Work-Related Infections of COVID-19

In an unpublished order, a recent California court case dismissed a lawsuit filed by an employee and his wife alleging that the employer was civilly liable for the employee's and his wife's COVID-19 exposure and subsequent hospitalizations. See the court's ruling here.

The complaint alleged that the husband worked at a construction site in San Francisco, and that in July 2020, his employer transferred employees from the company’s Mountain View job site to the San Francisco site, knowing that the transferred workers likely had been exposed to COVID-19 in Mountain View. Once in San Francisco, the employees allegedly worked closely with the husband, without adequate safety precautions. Soon, both the worker and his wife tested positive for COVID-19, and were hospitalized. The wife was severely ill, and was hospitalized for an extended period.

The couple sued the employer in state court, claiming negligence and violation of public nuisance laws, and loss of consortium suffered by the husband. All of the claims were based on the allegation that the employer knew or should have known that the transferred employees had been exposed to COVID-19, and that the employer failed to maintain a safe and healthy workplace.

The court dismissed the case, holding that the California's workers' compensation laws covered not only the employee husband's claims but also his wife's claims.

The decision confirms that COVID-19 infections, when contracted at work, are covered by workers' compensation, and that it also might cover the COVID-19 employee's family members.


See Also


References



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