As different sectors of the economy in California are reopening and COVID-19 vaccines encourage a return to pre-pandemic standards, many employers will face the task of calling employees back to the office. SBEMP partner Vee Sotelo has reported that an influx of inquiries to the firm’s Labor and Employment Department raise two important questions: Can employers require workers to come back to the workplace, and can employers require vaccinations?
According to Sotelo, the short answer to both questions is “Yes.” To break down the issue completely, she explains what employers can require by law, what constitutes a valid reason for refusing the vaccine, and how to safely implement a return to the workplace.
The Law on Job Requirements and Vaccinations
“The law has been clear for years,” says Sotelo. “A requirement that an employee work full time at an employer’s place of business is a perfectly legitimate and reasonable job requirement.”
Throughout the pandemic, employers have also asked what accommodations employees can lawfully request. Can employees claim that they should be accommodated due to childcare issues and other obstacles brought up by the pandemic?
“Although some employers – depending on the type of office and the necessity of having on-site staff – provided the option to work from home during the worst of COVID-19, that is not the new precedent. Employers are not obligated to continue with what was considered a temporary safety measure to prevent the spread of COVID-19,” notes Sotelo.
With the rapidly increasing distribution of vaccinations, requiring employees to work from an office should be expected. However, what about employees who have hesitations about the vaccine?
“Employees may refuse to get vaccinated if they have a legitimate reason for doing so, and that reason involves some constitutionally protected right or status,” according to Sotelo. “For example, an employee may refuse to receive the vaccination due to a disability or due to religious beliefs. In that case, the employer should try to provide reasonable accommodations so long as the accommodations do not impose an undue burden on the employer.”
How to Safely Return to the Office
Now that vaccines are accessible, and California is slowly starting to reopen, should every office create a social distancing plan?
According to Sotelo, “At this point, California has issued emergency temporary standards through the California Division of Occupational Safety and Health (Cal/OSHA), making it mandatory for all California employers to have a written COVID plan in place. That written plan has to address how the employer will identify and evaluate health hazards in the workplace caused by COVID-19, how to address any unsafe working conditions, and how to prevent exposure to COVID-19 in the workplace.”
To safely get their offices back in order, employers can bring their employees back in phases according to the order they receive the vaccine, or extend the option of working from home until the vaccination is available.
And when it comes to social distancing regulations, California employers should follow the law that is most comprehensive and offers the most protection.
“Let’s say there’s a conflict between a national executive order and a local or state executive order,” Sotelo points out, “whichever order offers employees the most protection is the order that you should follow.”
COVID-19 Social Distancing Plans
For those that need COVID-19 plan guidance, SBEMP has drafted a template they’ve been customizing for employers that need to bring people back.
Employers can even create their own plan very easily. Visiting the Cal/OSHA or website is one way to find a template of a COVID-19 plan.
“The problem is that many employers may not be sure what applies to them and what does not,” says Sotelo. “We are happy to sit down with employers and walk them through a plan so that it’s customized to their needs.”
Vee B. Sotelo is the head of the Labor and Employment Department at SBEMP and has successfully advised the owners and executives of a wide range of organizations through the pandemic. For further questions surrounding vaccinations, returning to the workplace, or COVID-19 plans please visit sbemp.com or call (760) 322-2275.
Nothing in the above article is intended to constitute legal advice. Please seek legal counsel to suit your specific circumstances for any legal advice.
