Choice Stories

June 1, 2021

Employer Considerations as California Re-Opens

With COVID-19 cases declining and vaccination rates increasing, California is aiming to fully reopen June 15. As of May 18, more than a dozen counties statewide had moved to yellow, the minimal risk category for COVID-19.

Transitioning Employees

Employers are starting to consider how best to transition staff who have been working from home back to the office. The challenge is many employees are showing some hesitancy to returning to business as usual. Small business owners must weigh the pros and cons of going back to the office full time. For many employers, this is uncharted territory. Here are some considerations and frequently asked questions.

Can I terminate an employee who refuses to return to work?

Although you cannot force an employee to return, their refusal to go back to work could jeopardize their future eligibility for unemployment benefits. According to the California Employment Development Department (EDD), if an employer abides by local and state guidelines and provides adequate employee protections, if employees refuse to return to work out of a fear of contracting COVID-19, they would not qualify for unemployment benefits.

Alternatively, if the business does not have proper protective measures in place, employees could use the lack of measures as their basis for not returning to work. In this circumstance, employees would be able to claim unemployment benefits.

Could a hybrid schedule be a good solution?

You may consider welcoming your staff back with a hybrid work schedule – where they work onsite two or three days a week on a staggered schedule, and work remotely on other days. This type of arrangement can help ease employees' concerns about safety and improve attendance and productivity. The Society of Human Resource Management (SHRM) offers some guidance in Managing Flexible Work Arrangements.

Can I require my employees to wear a mask?

Generally, yes. According to SHRM, employers can require face coverings as company policy when there is a legitimate business need, such as a concern about employee health and safety. In most cases, employers are able to enforce workplace face-covering requirements and discipline and/or terminate employees for failure to comply.

An employee with a disability that interferes with his or her ability to wear a face covering may request a reasonable accommodation under the Americans with Disabilities Act (ADA). (Refer to SHRM’s How to Handle an Employee's Request for an ADA Accommodation for additional guidance.)

Can I require my employees to be vaccinated?

Some employers have implemented rules requiring new employees to be vaccinated against the coronavirus. However, they may not be asking similar requirements of current employees. Others are offering a financial or other incentive (like added paid time off) to both new and current employees who are vaccinated. A survey by UCLA found interest among employees for an incentive; one-third of respondents said they would get the COVID-19 vaccine if offered an incentive of as much as $100. Another survey by a recruiting software firm found that even among vaccine mandate skeptics, one third would consider the vaccine if incentivized by their employer. 

Additional Resources

The U.S. Equal Employment Opportunity Commission (EEOC) offers some guidance to employers on COVID, the Americans with Disabilities Act (ADA), Rehabilitation Act, and other EEO laws here. Although you may wonder if asking about an employee’s vaccination status is a possible HIPAA violation, media reports suggest it is probably not a violation for non-health care businesses. If your business is bound by HIPAA (if, for example, you’re a health care provider or related business), an employee’s vaccine card is protected health information, and you may not want to ask about an employee's vaccination status. The Los Angeles Times reported on May 18 that guidance from the EEOC allows employers to require vaccinations if job-related or if an employee being unvaccinated could pose a threat to others.

The Society for Human Resource Management (SHRM) suggests employers monitor guidance from the U.S. Centers for Disease Control and Prevention (CDC), California Department of Fair Employment and Housing, and the California Department of Industrial Relations (also known as Cal/OSHA). Updates are being made to their websites regularly.

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