COVID-19 Return to Work Plan: Who Returns, When, Where & How
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As COVID-19 vaccines become more available, bringing employees back to work safely requires a detailed Return to Work Plan. Employers must adapt to ever-changing local, state and national requirements to keep employees, clients, customers, vendors, and the visiting public safe. Meyers Nave Labor and Employment Law Principals Camille Hamilton Pating and Arlene Yang presented a webinar on employers’ frequently asked questions. The webinar covered: Determining who returns to work and when, where, and how Vaccination policy options Managing workplace safety on a daily basis, including travel, health checks, masks and social distancing, and other requirements Mandated legal reporting of COVID-19 positive cases What to do when an employee refuses the vaccine or refuses to return to work Resources for the evolving hybrid workplace Avoiding the types of employment litigation claims most likely to arise from the “new normal” workplace
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COVID-19 Return to Work Plan: Who Returns, When, Where & How
- 1. COVID-19 Return to Work Plan: Who Returns, When, Where & How April 28, 2021
- 2. 2 Presenters Camille Hamilton Pating Principal (510) 808-2000 cpating@meyersnave.com Arlene Yang Principal (619) 330-1700 ayang@meyersnave.com
- 3. 3 • The information in this presentation is subject to change. • This is an informative presentation and not intended as legal advice. • Please consult with an attorney for assistance with a particular issue or problem.
- 4. 4 • Returning To Work • Vaccination Issues • Employees Who Refuse • Workplace Safety • Anticipating Potential COVID-19 Litigation • Diversity, Equity & Inclusion Impacts
- 6. 6 JUNE 16
- 7. 7 Poll #1 Does your company/organization have a Return-to-Work plan? a) Yes b) No c) Working on it d) Haven’t started yet
- 8. 8 Make a Written Return To Work Plan Detail: • Who will be returning • When will they be returning • Precautions in place to keep employees and the public safe
- 9. 9 Determine Who Returns To Work Identify: Essential services employees Mission-critical employees Employees who can continue to work from home Consider: Which roles transitioned smoothly to work from home Surveying employees
- 10. 10 Health & Safety Reopening Procedures Adjust work environment Staff health questionnaires Temperature checks PPE and social distancing requirements Prepare for reporting of positive cases
- 11. 11 Check Your MOUs Meyers-Milias-Brown Act National Labor Relations Act Contractual Obligations & Exceptions If you plan to implement new health and safety policies, speak to unions immediately
- 12. 12 Remember • Staff needs time to adapt to new ways of working post-pandemic. • Make sure employees understand expectations and steps taken to protect their health. • Potential uptick in personnel and compliance complaints. • Effective communication is essential to: re-acclimate an onsite workforce; identify potential problems; and, strengthen culture, increase employee engagement, productivity and loyalty.
- 13. 13 Takeaways For Employers Key Components: Written Return-to-Work Plan Assess needs Unionized employers begin meet and confer Build trust regarding employee health and safety Plan for accommodation, privacy and health & safety Lead with empathy
- 15. 15 Poll #2 What type of COVID-19 vaccination policy does your company/organization? a) Mandatory b) Voluntary c) Incentive Plan d) We won’t/don’t have a policy e) We don’t know yet
- 16. 16 Hypothetical - Is this ok? After everyone is eligible and has the opportunity to get vaccinated, every employee must show proof of vaccination to go into the office or attend events.
- 17. 17 Food Drug and Cosmetics Act • Emergency Use Authorization • Recipient must be informed of option to refuse the vaccine FD&C Act § 564, 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III) FDC&A provides no guidance Can employers discipline employees who refuse?
- 18. 18 Mandatory Program Must Accommodate Disability, Religion • EEOC Guidance – Dec. 16, 2020 Direct threat from unvaccinated individual - “significant risk of substantial harm to the health and safety of others that cannot be eliminated or reduced by reasonable accommodation” • DFEH Guidance – Mar. 4, 2021
- 19. 19 Vaccine Incentives • Wellness program must be voluntary. • No current EEOC guidance. • Special benefits or advantages to vaccinated employees? • Taxation of benefits? • Consult with counsel!
- 20. 20 Education https://www.cdc.gov/coronavirus/2019- ncov/vaccines/toolkits/essential-workers.html
- 21. 21 Unionized Workforce Meyers-Milias-Brown Act National Labor Relations Act Check Memorandum of Understanding (“MOUs”) High numbers of police and firefighters are declining vaccination. If you plan to implement mandatory requirement, must speak with unions immediately.
- 22. 22 Additional Vaccine Policy Considerations Wage and hour implications California Consumer Privacy Act and privacy considerations Employee cooperation Impact on recruiting, business and brand Masks/social distancing remain
- 23. Employees Who Refuse the Vaccine or to Return to Work
- 24. 24 Refusal to Return to Work Does employee have a protected reason? • Use “interactive process” approach • Identify other reasons employee may have for protected leave • Document, document, document
- 25. 25 Refusal To Provide Vaccine Information • Can you require proof of vaccination? • Can you ask applicants their vaccine status? • What can you do with the information?
- 26. 26 Hypothetical An employee objects to your vaccination program and asks for an accommodation on the ground that they believe that the COVID-19 vaccine is dangerous and ineffective.
- 27. 27 Takeaways For Employers • Consider the risks of – discipline or termination of a large number of employees. – creating multiple individual exceptions that may lead to litigation. • Public Agencies: Comply with due process before taking corrective action against employees as a result of a refusal to be vaccinated.
- 28. Workplace Safety
- 29. 29 New Cal/OSHA Emergency Temporary COVID-19 Standards • Nov. 30, 2020 - May 29, 2021 possibly extended • Written Prevention Plan • Exclusions: • 1 employee/no contact • Working from home • Cal/OSHA’s Aerosol Transmissible Diseases standard
- 30. 30 SB 1159 – Workers’ Compensation COVID-19 Presumption • March 19 - July 5, 2020 – Disputable presumption on-the-job injury for all mandatory on-site workers • July 6, 2020 - January 1, 2023 – Disputable presumption for (1) first responders and health care workers or (2) “outbreak” • Outbreak – 4 + tests if ≤ 100 employees, – 4% at location if >100 employees, or – ordered closed due to risk of infection • Mandatory Reporting to work comp. claims administrator within 3 business days
- 31. COVID-19 Leave and Reporting
- 32. 32 SB 95 - Supplemental Paid Sick Leave • Effective Jan. 1 – Sep. 30, 2021. • Paid sick leave for COVID-related absences in addition to paid time off benefits • Public and private employers with 26 or more employees Don’t forget: • Include SPSL on wage statements • Training • Post/Distribute Notice https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf
- 33. 33 AB 685 - Notice to Employees of Potential COVID-19 Exposure • Notice Requirements: Written Within 1 day To employees, subcontracted employees, union rep. Information about COVID-19 related benefits Disinfection and safety plan • Recordkeeping – preserve notices for 3 years • “Outbreak” – notify local public health agency within 48 hours Prepare ahead! • Letter • Gather contact information • Training • How to report
- 34. Reducing Liability for Potential Claims
- 35. 35 Trends In COVID-19 Litigation • Wrongful Termination • Workplace Safety • Paid Sick Leave • FMLA Leave • Failure to Accommodate Disabilities • Wage and Hour Issues/PAGA
- 36. Consider Diversity, Equity and Inclusion Impacts
- 37. 37 Questions Regarding COVID-19 Exposure Risk • Black/Indigenous/Persons of Color (BIPOC) employees are disproportionately frontline “essential” workers • BIPOC communities and preexisting health risks • Can employees walk/bike to work or face long commutes? • Consider how policies impact BIPOC employees
- 38. 38 Takeaways For Employers Update policies Document, document, document Communicate your consideration and empathy while maintaining employment standards Consistent application of the policies Consult HR and legal department/counsel early Arbitration agreements Class action waivers
- 39. 39 Camille Hamilton Pating Principal (510) 808-2000 cpating@meyersnave.com Arlene Yang Principal (619) 330-1700 ayang@meyersnave.com
Notas do Editor
- STEPHANIE
- CAMILLE
- CAMILLE
- CAMILLE 1 Returning To Work: determine Who Returns, When, Where & How. What about Accommodation Requirements. Who has to be accommodated regarding RTW and who does not? 2 Vaccination Issues: what will your policy be – mandatory vaccination, vaccination education, asking employees if they have been vaccinated. And how will you act on the vaccination information. 3 Employees Who Refuse: what about employees who refuse to comply with your vaccination requirements or policy. What about employees who refuse to return to work and demand to WFH? 4 Workplace Safety: What are the Requirements, What about Mandated Legal Reporting of COVID at work 5 Anticipating Potential COVID-19 Litigation Diversity, Equity & Inclusion Impacts 6 COVID-19 Employment Litigation Claims 7 Diversity, Equity & Inclusion Impacts
- ARLENE
- ARLENE
- ARLENE
- CAMILLE Public and private employers will be returning to work in stages with some employees who may continue to work part-time or full time from home for an extended period of time. This new hybrid workplace is like to become the norm over the next several years. Instead of allowing this to happen in a haphazard way, create a written RTW plan, detailing: Who will be returning When will they be returning Precautions in place to keep employees and the public safe Many of these steps will take time, so start planning early
- CAMILLE Focus on getting employees who really need to be at the job site, in the office or on the work floor back onsite as soon as it is safe and practical to do so Identify: Essential services employees Mission-critical employees Employees who can continue to work from home Consider: Which roles transitioned smoothly to WFH Consider surveying employees, especially the group who can continue to WFH, to determine who wants to return, who does not want to return and who has medical or childcare issues that they believe prevents their return.
- CAMILLE Adjust work environment for health and safety reception areas workstation areas conference and collaboration areas ancillary spaces training rooms Provide PPE: masks, gloves, sanitizer stations, cleaning supplies and any other and any other PPE needed for workplace Provide for daily Health checks: the CDC and CalOSHA recommend that all employers consider some kind of health check for all employees coming in the workplace other than home. Several Counties have issued Health Orders instructing all employers to create policies that require employees to complete a health check b4 coming into the office Temperature checks and COVID 19 Tests: Employers are allowed to conduct temperature checks and to require employees to take COVID 19 tests at employers expense. Employers should plan for positive COVID 19 testing –AB 685 – which I discussed later in this program
- CAMILLE
- CAMILLE
- CAMILLE
- ARLENE
- ARLENE
- ARLENE
- ARLENE
- ARLENE Title VII of the Civil Rights Act – sincerely held religious belief Americans with Disability Act Reasonable Accommodations Interactive Process Undue Hardship What if objection is not based on religion or disability?
- OUT? expected to issue guMandatory = 30% health ins. discount (AARP v. U.S.EEOC, 267 F. Supp.3d 29 (D.D.C. 2017) Voluntary = water bottle or gift card (proposed ADA regs. 29 CFR Part 1630) https://www.eeoc.gov/regulations/proposed-rule-amendments-regulations-under-americans-disabilities-act#
- Arlene is this OUT
- ARLENE/CAMILLE Jacobson v. Massachusetts, 197 U.S. 12 (1905) - states have the police power to mandate vaccinations. Firefighters and police
- CAMILLE
- When you contact employees to return to work, it is possible they will not want to return for various reasons. Employers must take a measured and documented approach to make sure employees do not have a protected reason to refuse to return. Example: employees who refuse to return bc they believe employer hasn’t done enough to protect against COVID 19 exposure may be protected as union concerted activity. Be reasonable when discussing concerns held by employees and approach these questions in the same manner as good faith interactive process. This is not legally required but it is a good way to document that the employer has acted reasonably to determine that the employee does not have reasonable grounds to refuse to return to work. NOTE: this interactive RTW conversation may reveal other reasons the employee may have to take protected leave, such as voluntary FFCRA leave through September 30th, FMLA or CFRA leave, or other accommodations under FEHA and ADA. Employees who are on unemployment will no longer qualify if they refuse to RTW.
- CAMILLE Employers who want to ensure a safe and smooth reentry into the workplace may want to know whether their employees have been vaccinated. The public and co-workers may want to know whether those they’re interacting with have been vaccinated. 1. Can you require proof of vaccination? YES. Can you Ask? YES, But Employers under have the right (according to the EEOC, under federal law) to require the COVID-19 vaccine, and to ask employees if they received the shot (vaccine status) or request proof of the shot. But keep in mind that only federal law has spoken on this matter. State law may further regulate whether an employer may require or mandate COVID-19 vaccination or proof of vaccination. State legislation will supersede federal guidance. 2. When an employee has not been vaccinated, employers must be careful not to ask why, particularly in situations in which vaccinations are voluntary and not required for the job. This can lead to a medical inquiry protected under the ADA. Medical inquiries are only permitted where they are necessary for the job. Employers may require employees to provide proof of vaccination but cannot mandate that the employee provide any additional medical information as part of the proof. 3. What can you do with the information?-ADA protected information. Must be kept separate from personnel files – same with lists of who is vaccinated
- CAMILLE: Must be religious belief – same with view s against wearing masks or other PPE
- CAMILLE
- ARLENE
- ARLENE Written, detailed COVID-19 Prevention Plan, including: Communicating system ID and evaluation of hazards Investigation and response to cases Correcting hazards Return to work criteria Recording requirement Testing and notification
- ARLENE
- ARLENE
- ARLENE
- ARLENE Policies, advice and counsel for implementation Update your handbook Train managers and supervisors Minimize and limit risk
- ARLENE
- ARLENE
- CAMILLE
- CAMILLE CDC Data indicates an increased risk of COVID-19 infection in Black populations, which ranged from 1.5 to 3.5 times higher than the risk for white people. Studies that evaluated hospitalization rates found a similar disparity. Excess death rate compares the percentage of COVID-19 deaths among African Americans to their percentage in the US population. This data showed a 15% excess death rate for Black Americans. CDC data were less conclusive for Hispanic people because rates varied by geographic location but showed moderate disproportionately high infection and hospitalization rates. The excess death for Hispanic COVID patients was 21%.
- CAMILLE/ARLENE