As the pandemic appears to be subsiding many employers anticipate return to more normal operations and staffing. However, the occupational health and safety landscape is not returning to normal any time soon, if ever. It continues to challenge employers with an ever evolving kaleidoscope of overlapping guidance, regulations and statutes issuing from federal, state and local levels of executive, legislative, regulatory and health agency authorities. If not a “perfect storm” for employers, this legal circumstance is certainly one of heavy winds and high seas, adding the burdens of new compliance hazards to the other challenges of business regeneration.
Waves of hand wringing legal commentators have lately voiced appropriate concerns about the myriad possible compliance issues resulting for employers and their need to be vigilant. The more successful sister of vigilance, however, is preparation. For California employers this would entail two basic steps:
- The first is careful study of the Cal-OSHA emergency guidance issued December 1 as a supplement to its General Safety Orders. The 12 page main section is a compliance road map which incorporates much of the prior many months of guidance from health agencies at all levels for addressing COVID-19 risks in the workplace. Risk averse employers have already incorporated relevant aspects of this regulation in their (required) Illness and Injury Prevention Program (IIPP) documents. This initiative will also insulate them from potential penalties should Cal-OSHA happen by on a spot investigation to check both working conditions and the status of the employer’s IIPP.
- An employer should frequently consult State of California and Los Angeles County Public Health Department industry specific guidance (LADPH updated its guidance for Restaurants, Wineries and Bars as recently as March 11, 2021).
Once an employer has established protocols for compliance with the above guidance, it will have a solid base line for dealing with one-off and vaccination related issues as they arise. The former include, for example, such issues as (a) an age 65 employee refusing to comply with longstanding job requirements to fill in temporary vacancies in other locations as they arise. The EEO has made it clear that no special treatment is due age 65 and older employees who express COVID based fears of being at work solely on the basis that statistics indicate that older employees are more vulnerable to the COVID virus. An employer which has established and maintained appropriate COVID protective protocols in the workplace should not fear any age discrimination threats in such a case; and (b) a veteran foreman who reports to work even though he has COVID symptoms and/or has tested positive will be more easily disciplined if the employer has established strong protocols against any such cavalier disregard for co-worker safety.
- Vaccination Issues. 40% of surveyed Americans have expressed reluctance to be vaccinated. If a similar percentage of an employer’s employees have such reluctance it may not matter that the law currently puts employers who require vaccinations for return to work on fairly solid ground. Exceptions apply to this requirement for employees with relevant disabilities, medical conditions or sincerely held religious beliefs. Even so, an employer may want to consider face mask, distancing and other protocols to accommodate non-vaccinated employees in order to regain a full complement of employees.
4. Family First Coronavirus Relief Act Leaves. The availability of these leaves expired on December 31, 2020, and employers are no longer required to honor them. However, the new Congress extended an employer’s access to tax credits for voluntarily honoring such a leave before March 31, 2021. As even this minor extension is expiring, absent further Congressional action these paid leaves will no longer be available to employees.
In summary, employers are well advised to establish a firm basis of compliance. From this foundation it will be far easier to deal with however the vaccination winds blow and with one-off issues as they arise. Consultation with counsel is always recommended in this area of dense and evolving government action.
Karl A. Schmidt
Parker, Milliken, Clark, O'Hara & Samuelian, a Prof. Corp.