Employer Response to COVID-19 in the Workplace

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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 to take no position at all on vaccination.

The CDC has issued guidance on workplace vaccinations and provides factors for employers to consider when determining whether to implement a workplace vaccination program. It also provides steps employers should consider to increase vaccine acceptance int he workforce. The CDC doesn't take any position as to whether it's legal to mandate vaccinations and 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. https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/essentialworker/workplace-vaccination-program.html

The CDC guidance says employers should consider on site workplace vaccination program if it has:

• A large number of workers onsite 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 have a vaccination clinic while maintaining social distancing through the entire process, from screening to post-vaccination observation.

The CDC said an employer should consider offsite vaccination if it:

• Is a small or midsize organization that does not have the resources to host a vaccination clinic.
• Has mobile workers who frequently move from one jobsite to the next.
• Has workers with highly variable schedules.
• Has a majority of workers who prefer vaccination in a community clinic rather than an employer-run clinic.

Employer should remember that just because the CDC issues guidance on employer provided vaccination, it does not opine on the legality of mandating vaccines clearly stating state law governs the legality of employer required vaccines.

The CDC is concerned about vaccine reluctance among some individuals and has provided recommendations employers should consider to increase vaccine acceptance:

• Appoint 'vaccine ambassadors' that are trained to provide information to concerned employees about the vaccine, relay personal stories about the vaccines and answer any questions from concerned employees.
• Creatively use communication tools to promote vaccinations to the workforce including social media, emails, posters and signs.
• Hold virtual town hall type meetings with employees where management and experts can share facts about the vaccine.
• Have the leadership team and managers get the vaccine and describe their experiences. The CDC reminds employers that sharing of experiences should be voluntary.

The above measures can be used when mandating vaccination, incentivizing employees to take the vaccine and with voluntary vaccination programs.

Mandating Vaccinations

The Equal Employment Opportunity Commission (EEOC) weighed in vaccination in the workplace in December 2020 with new guidance that answers some workplace vaccination questions. https://www.workplaceclassaction.com/wp-content/uploads/sites/214/2020/12/EEOC-COVID-19-Guidance-12-16-20.pdf In March 2021, the Department of Fair Employment and Housing (DFEH) issued its guidance and generally concurs with the EEOC’s original guidance. https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf

Both the EEOC and DFEH concur 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 they are following all workplace laws, employers with unionized workforces will have to negotiate with their unions prior to implementing any vaccination policy.

The EEOC and/or the DFEH provide guidance on the following areas:

Vaccinations are not “medical examinations”

The EEOC guidance states that a vaccination itself is not a medical exam under the ADA and therefore, regardless of whether an employer’s policy requires mandatory or voluntary vaccination, such policy is not prohibited by the ADA.

Pre-Screening Questions

Pre-screening questions for the vaccination could elicit information revealing a disability, and therefore, in order 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 or the DFEH provide examples of vaccine related questions that would be appropriate under the 'job related and business necessity' standard. If an independent third-party without a contract with the employer is administering the mandatory vaccine, such as a pharmacy or other healthcare provider, the same restrictions with respect to the job relatedness and business necessity of the questions isn’t applicable.

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

If an employer-administrated vaccination is voluntary, then pre-screening questions are acceptable if the employee’s decision to answer those questions is also voluntary.

Both the EEOC and the DFEH have previously issued guidance related to the type of questions an employer may properly ask an employee about COVID-19. For example, it is proper to ask employees about their COVID-19 symptoms but improper top ask about pre-existing medical conditions that might elicit medical information about disabilities. See https://www.workplaceclassaction.com/wp-content/uploads/sites/214/2020/12/EEOC-COVID-19-Guidance-12-16-20.pdf and https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf

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. However, related questions could trigger a violation of the ADA such as asking an employee why they didn't get vaccinated as it could elicit and answer disclosing a disability. Again, medical inquiries of employees are only permitted under the ADA if they are job-related and consistent with business necessity. If employers require proof of vaccination that must advise employees employees not to provide any other medical information to avoid implicating the ADA.

Keep Any Information Gathered Confidential

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

Objections Based on Religious or Disability Grounds

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

If an employee objects to vaccinations on religious or disability grounds, the employer has an obligation to engage in an interactive dialogue with the employee to determine whether a reasonable accommodation is possible.

Disability Accommodation

If an employee refuses a vaccine based on a restriction caused by a disability, the employer must engage in the interactive process to determine whether a reasonable accommodation exists.

Employers should consider accommodations like teleworking and the use of reasonable procedures and safeguards that would enable an employee to work without endangering the employee or others like use of face masks, social distancing, barriers, and other methods currently being used to keep workers safe.

In addition, as part of the interactive process, ask the employee how he or she thinks they can be accommodated and involve the employee’s health care provider, if necessary, when determining what accommodation might be appropriate.

If an employee with a disability objects to the vaccine the employer must accommodate unless accommodating would cause an undue hardship.

If an employer can show there is no accommodation that would prevent the direct threat of having an unvaccinated employee in the workplace, it may exclude the employee 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 considerations.

Employers should ensure all types of accommodations are considered, including temporarily or permanently transferring the employee to a different position before terminating an employee was cannot be vaccinated because of a disability. The burden of proof on employers is high when seeking to exclude workers from the worksite and employers are strongly encouraged not to terminate disabled employees who cannot be vaccinated without consulting with legal counsel because the risk of legal exposure can be 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 an 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 and protects religious beliefs and practices of which employers may not be aware. Therefore, the employer should assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, the employer has an objective basis for questioning whether the religious nature or the sincerity of the belief, practice or observance, the employer 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 and may include job restructuring, job reassignment, or modification of work practices. Be sure to involve the employee in the interactive process when discussing possible accommodations.

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

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

Employers are strongly encouraged to consult with legal counsel before terminating any employee requesting 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 its employees to be vaccinated against COVID-19 and an employee objects to receiving a vaccination because they fear the vaccine isn’t safe but doesn’t have a disability reason or sincerely held religious belief for not being vaccinated, the employer is not legally required, according to the EEOC or DFEH, to reasonably accommodate the employee.

If an employer requires its employees to be vaccinated against COVID-19 and an employee objects to receiving the vaccination but does not request a reasonable accommodation related to their 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 any employee for engaging in protected activity.

No Retaliation

Both 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 are ultimately 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 employee 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 including allowing employees to get vaccinated during the workday and paying the employees' wages for the time spent receiving the vaccination. Employers must also pay for out of pocket costs like vehicle mileage or the cost of public transportation for an employee to travel to and from the vaccination site.

Legal Challenge to Mandating Vaccines

A lawsuit has been filed challenging the employers mandatory vaccination policy. The complaint alleges the FDA's emergency use authorization of the various COVID-19 vaccines requires that the person receiving the vaccine 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. This page will be updated as the case makes it through the court system.

Incentivizing Vaccinations

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

• Develop vaccination education campaigns.
• Make obtaining the vaccine as easy as possible for employees.
• Cover any costs that might be associated with getting the vaccine.
• Provide other incentives to employees to get vaccinated like gift cards.
• Provide paid time off for employees to get the vaccine and recover from any potential side effects.

Caution is recommended when providing any kind of financial incentive to get the vaccine. It is unclear how cash incentives, including giving employees who get vaccinated gift cards and such, affect the ADA and FEHA and whether the EEOC or DFEH would consider such incentives contrary to the law. We will update this page when either the EEOC or DFEH provide guidance on cash or gift incentives.

Employers considering cash and gift incentives should consult their tax advisors to determine whether such incentives should be considered taxable income to employees. Cash incentives or non-discretionary bonuses may also implicate wage and hour laws affecting non-exempt employees regular rate of pay for the pay period in which the cash or non-discretionary bonus is received. This could have the unintended consequence of increasing overtime pay creating unexpected payroll expense. For these reasons caution is recommended when implementing an incentive involving cash incentives or bonuses.

Note that employers required to provide California supplemental pay for sick leave are already required to provide employees for time off to not only get vaccinated but to care for any adverse effects of the vaccine. See California Enacts New Supplemental Sick Leave Mandate Effective March 19, 2021.

''''Employer’s Liability and Exposure for Work Related COVID Infections''''

In an unpublished order, a recent California court case dismissed a lawsuit filed by an employee and his wife alleging the employer was civilly liable for the employees and his wive's COVID-19 exposure and subsequent hospitalizations. See the court's ruling here. https://www.govinfo.gov/content/pkg/USCOURTS-cand-3_20-cv-09355/pdf/USCOURTS-cand-3_20-cv-09355-0.pdf

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

The employee husband and his wife sued the employer in state court alleging claims for negligence and violation of public nuisance laws, and loss of consortium suffered by the employee husband because his wife was sick. All of the claims were based on the allegation 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 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 the workers compensation laws and that these laws may also cover the COVID-19 employee's family members as well.

See Also

• "Sullivan on Comp" Chapter 11: Return to Work

References

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