The prospect of returning to our businesses to resume in-person work is exciting, but comes with significant questions from both the employer and employee. At the San Diego Regional Chamber of Commerce, we know that our members are doing everything they can to help keep our region safe, including trying to stay up to speed on the changing information and guidelines that come from the county, state, and federal levels.
Our team has put together a guide of practical information to help businesses navigate reopening. We hope the information included can answer some of your questions. But if you need more support in thinking about your reopening, feel free to contact a member of the Chamber team.
Returning to the Office
Frequently Asked Questions
Q: What does “fully vaccinated” mean?
A: The CDC defines fully vaccinated as anyone two weeks after they have received the second dose of the Moderna or Pfizer vaccines, and/or someone two weeks after their single Johnson & Johnson shot. Cal/OSHA ETS defines fully vaccinated as “the employer has documented that the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine. Vaccines must be FDA approved; have an emergency use authorization from the FDA; or, for persons fully vaccinated outside the United States, be listed for emergency use by the World Health Organization.”
Q: Is documentation required for a fully vaccinated employee to work without a face covering indoors?
A: According to the updated Cal/OSHA ETS, vaccination status must be documented. Employers can use the following options to meet documentation requirements:
- Employees show proof of vaccination (i.e. vaccine card), and the employer maintains a copy.
- Employees present proof, and employers maintain a record of who presented proof, without keeping a copy of the vaccine record itself.
- Employees self-attest to vaccination status and employers maintain a record of who self attests.
Q: If an employee is vaccinated are they exempt from safety precautions?
A: No. The CDC and California Department of Public Health have determined that an employer can still require fully vaccinated employees to follow any safety protocols or measures including wearing masks and socially distancing.
Q: Updated Cal/OSHA ETS requires employers to make distinctions between fully vaccinated and unvaccinated employees. What are best practices to ask my employees about their vaccination status?
A: Employers can ask for proof of a COVID-19 vaccination or for employees to self attest, but should avoid asking follow up questions as to why and employee chose to receive or not receive a vaccination. These inquiries can lead to disability or medical-related information, which is protected under the EEOC.
Q: What if an employee refuses to state their vaccination status?
A: An employer is not obligated to require employees to submit proof of being fully vaccinated. The employee has a right to decline to state if they are vaccinated, and the employer must treat the employee as if they were not vaccinated. The employer cannot retaliate or take disciplinary action against an employee that refused to state their vaccination status.
Q: Can I require an employee to return to the office/workplace before they are fully vaccinated?
A: Yes, an employer can require their staff to work in their offices, as long as there is no shelter in place guidelines. However, the employer has a responsibility to provide a workplace that takes appropriate measures and precautions to keep your employees safe. If an employee does not feel safe (i.e. if you are actively advocating against basic safety precautions), they could file a complaint with CalOSHA, which would trigger an investigation. A simple way to protect your workplace from such complaints is to follow the Reopening Plan required by the County and proactively, and routinely, educate your employees and customers about it.
Q: Can an employer require employees to be vaccinated against COVID-19?
A: Yes, so long as the employer does not discriminate or harass employees on the basis of a protected characteristic.
- According to the Department of Fair Employment and Housing, “Under the FEHA, 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 a protected activity (such as requesting a reasonable accommodation).”
Q: How can an employer accommodate employees who object to vaccination on the basis of disability or sincerely-held religious beliefs?
A: A reasonable accommodation “eliminates the conflict between the religious belief or practice and the vaccination requirement,” which can include job reassignment or modification of work practices.
Q: Can I require proof of vaccination before returning to the workplace?
A: Yes. Reasons for vaccination may or may not be related to disability or religious creed, so asking for proof of vaccination is not considered a disability related inquiry, religious creed related inquiry or medical examination. Employers are advised to instruct employees to withhold any medical information from vaccination documentation. Any proof of vaccination obtained by an employer must be maintained as a confidential medical record. Employers should also avoid follow-up questions about why someone may not be vaccinated, as that can lead to complicated interactions that could trigger other legal issues.
Q: Do employers have to provide testing for their employees?
A: Not necessarily. Employers must provide information, not actual tests. An employer is required to inform all employees on how they can obtain testing. This could be through the employer, local health department, a health plan, or at a community testing center. The only obligation to all employees is to provide information. Employers are required to:
- Offer testing to an employee at no cost and during working hours in the event of a potential COVID-19 work-related exposure.
- Provide periodic (at least weekly or twice per week depending on the magnitude of the outbreak) COVID-19 testing to all employees in an “exposed workplace” during an outbreak.
- Testing must be provided in a manner that ensures employee confidentiality.
Employers are required to offer testing at no cost during paid time during the following circumstances:
- (NEW) An unvaccinated employee is symptomatic, regardless of if there is a known exposure.
- Unvaccinated employees after an exposure
- Vaccinated employees after an exposure if they develop symptoms
- All unvaccinated employees in an outbreak, defined as three or more cases
- All employees in a major outbreak, defined as 20 or more cases, regardless of vaccination status.
Q: What do I need to provide employees returning to the workplace?
A: Per a California Supreme Court ruling from 1979, employers are required to cover the cost of PPE or provide PPE to their employees. You’ll also want to make sure your employees have been provided, and given ample time to review, your reopening document that was filed with the County. The CDC recommends identifying a “workplace coordinator” who will be responsible for “COVID-19 issues and their impact at the workplace.” Employers are also required to provide respirators for employees, at the employee’s request.