May 26, 2021

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

NEW OSHA UPDATES: (November 4, 2021)

Today, you may have heard that President Biden and the Department of Labor issued the emergency temporary standard (ETS) for their rule directing employers of 100 employees or more to require vaccination or weekly testing of their employees. Here are some toplines for your consideration:

• Determining employee count: You should use the total employees of your firm nationwide. Meaning if you have 20 employees in five states, you would be covered by this rule. Temporary employees and part time employees are also counted toward your total. Unionized work places are also covered by this rule. Independent contractors, those who exclusively telework from home and don’t interface with others, and those that work exclusively outdoors do not count.
• Implementing an employer policy on vaccination: The rule requires that you write and implement a policy on vaccination. Your policy “must require vaccination of all employees” with the exception for three groups: those who cannot get the vaccine for medical reasons, those who need to delay the vaccine for medical reasons, and those who are entitled to reasonable accommodations for sincerely held religious beliefs, or a disability. Your policy can treat different groups of employees differently depending on criteria. For instance, if only some of your workforce reports to the office, and some solely telework from home, the employer may call out in its policy that they are only requiring vaccines for those reporting to the physical office.
• What to include in the employer policy: The employer policy should clearly call out the requirement for the COVID-19 vaccine; when people could be excluded (those are the specific reasons called out above); how the vaccine status will be determined (more below);  how the information on vaccine status will be collected and maintained; paid time and sick leave for vaccine purposes; how you will notify regarding a positive COVID test and what your removal policies will be; and any disciplinary proceedings for an employee who refuses to comply. Employers should also include when it is effective, who it applies to, and where to find additional information on preventing COVID. If you already have a COVID policy, you should evaluate it with these requirements and update if necessary. You are not required to submit your plans to OSHA but it could be requested by the Assistant Labor Secretary, in which case you must submit it in writing within four business hours.
• How to Determine Vaccination Status: Employers are expected to obtain proof of vaccination status, but can choose what way to do so. Acceptable options are viewing/copying the physical vaccination card, receiving a photocopied version, or a photo of the card. The employer is required to maintain a copy of the vaccination proof. These documents are considered to be medical records, and have to be maintained as such. At this time, booster shots and additional doses are not included in the definition of fully vaccinated, so the employer does not need to collect them. Previously having COVID is also not included in the definition of fully vaccinated, and does not impact this requirement.
  • Specific acceptable documentations for proof:
    • Immunization record from the provider or pharmacy
    • A copy of the COVID-19 vaccination Record Card
    • A copy of medical records documenting the vaccine
    • A copy of immunization records from a public health, state, or tribal immunization information system
    • A copy of any other official documentation that contains the type of vaccine administered, dates, and the name of the health care professional or clinic administering the vaccine.
  • For these documents to be accepted, it must legibly include the employees name; the type of vaccine received; the dates; and the name of the professional or clinic administering them.
  • If an employee loses their card, and cannot receive other documentation after contacting the vaccine provider, they can provide a signed and dated statement that attests to their vaccination status; attests that the card is lost or they are “otherwise unable to produce proof required”; and include the following language: “I declare that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.” They should, to the best of their knowledge, include the type of vaccine administered, the dates administered, and who administered it.
• Supporting employee vaccines: Employers must provide employees reasonable time during work hours to get their primary vaccine doses. If an employee experiences side effects and has accrued sick time, the employer can require that the employee use that time to recover. However, an employer cannot require an employee to end up in the negative if they need additional time to recover but do not have accrued paid time off. If they get vaccinated outside of work hours, the employer does not have to provide additional paid time or benefits.
• Testing unvaccinated employees: For those unvaccinated employees who report in a generally regular work schedule, testing very seven days is required. However, for an employee who maybe goes to the office once a month, the employer has to ensure that they are tested for COVD-19 within seven days before returning to the workplace and submits documentation of that test result. If an employee has not tested, they cannot come to the workplace even if they wear a face covering and are isolated. If an employee gets COVID, they do not have to undergo weekly testing for 90 days following the positive test. Employers must require copies of every test result and must be treated as medical records.
• Employer costs for testing: Employers are not required to pay for costs of testing. However, in some states or jurisdictions that may be different (in California, for instance).
• Face coverings: Depending on your workplace policy, only employees who are unvaccinated and undergo weekly testing need to wear face coverings. Employers cannot prohibit employees from wearing face coverings, though, regardless of vaccine status.

• Effective Date: December 5, 2021: 
  • Establish policy on vaccination
  • Determine vaccination status of employee, obtain acceptable proof, maintain records and roster of vaccination status
  • Provide support for employee vaccination
  • Require employees to provide notice of positive COVID-19 test result
  • Remove any employee who received positive COVID-19 test or diagnosis
  • Ensure employees who are not fully vaccinated wear face coverings when indoors or occupying a vehicle for work purposes
  • Provide each employee information about the ETS; workplace policies and procedures; protection against retaliation; and laws that provide for criminal penalties for knowingly supplying false documentation
  • Report work related COVID-19 fatalities to OSHA within 8 hours and work related COVID-19 hospitalizations within 24 hours
  • Make certain records available

• January 4, 2022:
  • Ensure employees who are not fully vaccinated are tested for COVID-19 once weekly

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.^[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: 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.

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

^[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