Return to Work Guidance

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.

Return to Work Guide


Returning to the Office

+ General

  • Communicate early and often with your team
  • Consult with an HR and/or legal professional
  • Document your interactions, education efforts, and communication regarding the precautions you are taking to protect employees and customers.
  • Check on the changing regulations frequently – new guidance for employers in California is expected June 3.

For more complete details, download the Return to Work Guide.

+ Vaccines

  • Employers can require the vaccine, but “strongly encouraging” may be more appealing for employers who don’t want to collect that information.
  • Vaccines are still in emergency use authorization stage, meaning full FDA approval is pending and can impact mandating vaccines.
  • Vaccine documentation/tracking (if collected) should be kept by an employer like medical data and security measures must be taken.
  • A vaccine policy is mandatory for employees.

For more complete details, download the Return to Work Guide.

+ Physical Return to the Office

  • Employers can require staff to return to the office.
  • High-risk employees may request reasonable accommodations such as continued telework- employers should be proactive about options and flexibility.
  • Remember that accommodations must be equal, and should have rationale applied.
  • San Diego County has a safe reopening plan that should be filled out- this is a good guide outlining points of discussion between the employer and staff.
  • Employers must provide appropriate PPE for staff, and proactively educate them about limiting the spread of COVID.

For more complete details, download the Return to Work Guide.

 


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.

 

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: 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).”
  • Under the ADA, an employer can require COVID-19 vaccinations to meet a qualification standard that is job-related and consistent with business necessity, such as a safety standard. If an employee requests an exemption due to a disability under the ADA, the employer cannot require the employee to get a vaccine unless it can prove that individual would pose a “direct threat” to the health or safety of others in the workplace. A direct threat is defined as “a significant risk of substantial harm” that cannot be resolved by reasonable accommodations, like social distancing, flexible work arrangements, etc.

 

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.[1] 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: What are examples of a reasonable accommodation for an employee who does not get vaccinated due to disability; religious beliefs, practices, or observances; or pregnancy? [2]

A: Individuals who choose not to get a vaccine for a reason protected by the ADA or Title VII can be entitled to an accommodation, proven it does not cause an unreasonable hardship for the employer. This can include wearing face masks in the workplace, social distancing, alternative schedules or remote work arrangements, regular COVID-19 testing, or accept a reassignment.

 

Q: How can an employer recognize an accommodation request from an employee with a disability?

A: The individual must let their employer know they need an adjustment related to a medical condition. They do not need to mention the ADA or use the phrase “reasonable accommodation.”[3]

 

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.

  • 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.

 

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.”

 

 

[1] https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf#page=7

[2] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#D

[3] https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#requesting

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