News & Events

Mandatory COVID-19 Vaccinations in the Workplace

by Fenton & Keller

January 14, 2021

Question: Can I require my employees to get the new COVID-19 vaccination when it becomes available?

Answer:  The Equal Employment Opportunity Commission (EEOC) recently issued much-anticipated guidance on the COVID-19 vaccination in the workplace confirming that generally, employers may require employees to get the COVID-19 vaccination as long as the requirement is job-related and consistent with business necessity.  In formulating any vaccination policy, an employer must keep in mind the protections afforded to employees under federal and state law.

In deciding whether to require employees to get COVID-19 vaccinations, employers should assess the potential direct threat to the workplace if employees are not vaccinated, considering the risk level of their specific workplace environment and industry. For instance, if an employer’s customer base is typically high-risk, or if the workplace has already had work-related COVID-19 exposures during the pandemic, then mandating the vaccination for employees may be a prudent way to provide a safe and healthy work environment.

If an employer decides to require the vaccination and an employee refuses, the employer must conduct an individualized assessment to determine if the employee is refusing for a protected reason under the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act, or the California Fair Employment and Housing Act (“FEHA”).

For refusals based on a disability, the employer must determine whether an unvaccinated individual would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  The employer should review the following four factors:

1. The duration of the risk;
2. The nature and severity of the potential harm;
3. The likelihood that the potential harm will occur; and
4. The imminence of the potential harm.

If the employer finds that a direct threat exists, it cannot automatically discharge the employee.  The employer must determine whether a reasonable accommodation is available that would not impose an undue hardship for the employer, such as having the employee work remotely or placing the employee on a leave of absence.

For refusals based on sincerely held religious beliefs, employers must also reasonably accommodate employees unless doing so would pose an undue hardship. Because the definition of religion is broad and protects beliefs with which the employer may be unfamiliar, the EEOC advises employers to assume an employee’s stated religious belief is sincere.

According to the CDC, certain questions should be asked before administering the vaccine to ensure that there is no medical reason that would prevent the employee from receiving the vaccination.  If the employer is administering the vaccination, pre-screening questions it poses may elicit information about an employee’s disability, implicating the ADA’s and FEHA’s provisions on disability-related inquiries.  If the questionnaire asks for genetic information such as the employee’s family medical history, that implicates protections under the Genetic Information Nondiscrimination Act.  Employers should ensure that inquiries are job-related and consistent with business necessity, and should instruct employees not to provide any genetic or disability related information in answering the pre-screening questions.  Employers must also maintain the confidentiality of employees’ responses.

As new information about vaccine efficacy and longevity, distribution, and vaccination plans emerge, it is likely the EEOC and other state or federal agencies will issue additional guidance, or revise guidance to reflect the most current information.  For more information, employers can review the EEOC guidelines regarding the COVID-19 vaccine.

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New Cal/OSHA Regulations Require Employers to Adopt and Implement a COVID-19 Prevention Program

by Fenton & Keller

December 25, 2020

Question: My business has an Injury and Illness Prevention Plan (“IIPP”) to comply with the Cal/OSHA workplace safety rules. A friend told me that I need to make a new IIPP because of COVID-19. Is this true?

Answer: Yes. On November 19, 2020, Cal/OSHA approved a comprehensive and complex set of “COVID-19 Emergency Temporary Standards” to address issues related to COVID-19 in the workplace. The emergency standards became effective on November 30, 2020, with a current expiration date of October 2, 2021. Though some businesses in the healthcare industry are exempt and covered under a separate Cal OSHA Aerosol Transmissible Diseases standard, nearly all other California employers are now subject to the new emergency standards.

To comply with the emergency standards, an employer must develop a written COVID-19 Prevention Program, which must implement the following:

• Communication to employees about the employer’s COVID-19 prevention procedures
• Identification, evaluation, and correction of COVID-19 hazards
• Physical distancing of at least six feet unless it is not possible
• Use of face coverings
• Use of engineering controls, administrative controls, and personal protective equipment as required to reduce transmission risk
• Procedures to investigate and respond to COVID-19 cases in the workplace
• Provide COVID-19 training to employees
• Provide testing to employees who are exposed to a COVID-19 case, and implement regular workplace testing for employees in the event of multiple infections or a major outbreak
• Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk
• Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and the local health department, as required

The COVID-19 Prevention Program, which contains requirements that are similar to the Cal/OSHA IIPP, may be integrated into the employer’s normal IIPP or maintained in a separate document.

The emergency standards contain a new employer-sponsored paid sick leave mandate requiring an employer to provide an employee with paid leave if the employee is sent home because the employee was exposed to COVID-19 at work. An employer can satisfy this paid leave requirement by providing the employee with existing paid sick leave benefits such as Families First Coronavirus Response Act and Healthy Workplaces, Healthy Families Act sick leave, or other existing paid time off provided by the employer. The employer may also consider benefit payments from public sources (e.g., unemployment insurance and workers’ compensation benefits). However, if these sources are insufficient to maintain the employee’s full compensation during the quarantine period, the employer must make up the difference with additional paid time off.

Also, employers must immediately exclude from the workplace COVID-19-positive employees and employees who were exposed to COVID-19. An employee was “exposed” to COVID-19 if the employee was within 6 feet of a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s high-risk exposure period. The high-risk exposure period for a COVID-19 case begins 48 hours (2 days) before the person developed COVID-19 symptoms, or if the person never developed symptoms, then 48 hours before the person took the first COVID-19 test that came back positive.

The emergency standards contain detailed rules for determining when such employees may return to work and prohibit employers from requiring an employee to obtain a negative COVID-19 test result before returning to work.

Though it is difficult to keep up with all of the new COVID-19 workplace laws, implementing a written COVID-19 Prevention Program is a crucial first step to mitigating COVID-19 risks at the workplace.

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Mandatory Sexual Harassment Prevention Training Must Be Completed By January 1, 2021

by Fenton & Keller

November 27, 2020

Question:  I remember reading about harassment prevention training requirements for small businesses, but the deadlines for completing the training kept changing.  Is there a deadline?

Answer:  Although originally all California employers who employ five or more employees had a January 1, 2020 deadline to provide effective interactive training regarding sexual harassment, Governor Newsom signed legislation extending the deadline to January 1, 2021.  Employers who have not yet completed the requisite trainings for their employees must do so by December 31, 2020 to comply with the January 1, 2021 deadline.  Employers who provided legally compliant harassment prevention training and education in 2019 do not have to provide it again until 2021.

As a reminder, Governor Brown signed Senate Bill 1343 in 2018 requiring businesses with five or more employees to provide interactive training in the prevention of sexual harassment to all employees. The training must address sexual harassment, including providing practical examples of harassment based on gender identity, gender expression, and sexual orientation.  It must also address the prevention of discrimination, retaliation, and abusive conduct.  The law requires employers to provide one hour of this interactive training to nonsupervisory employees and two hours of this interactive training to supervisors and managers.  The training must be provided once every two years. However, new hires or newly promoted supervisors must receive the training within 6 months of hire or promotion. Additionally, beginning January 1, 2021, employees who are seasonal, temporary, or hired to work for less than six months must receive the training within 30 calendar days after their hire date or within 100 hours worked, whichever occurs first.  Employers are not required to train employees who are employed for fewer than 30 calendar days and work for fewer than 100 hours.

The training may be completed by employees individually or as part of a group presentation, and it may be completed in shorter segments, as long as the applicable hourly total requirement is met.  To satisfy the “effective interactive training” requirement, the training may include any of the following:

• Classroom training that is in-person whose content is created by a trainer and provided to employees by a trainer, in a setting removed from the employees’ daily duties.
• E-learning that is individualized, interactive, computer-based training created by a trainer and an instructional designer that includes a link or directions on how to contact a trainer who shall be available to answer questions and to provide guidance within two business days after the question is asked.
• Webinar training that is an internet-based seminar whose content is created and taught by a trainer and transmitted over the internet or intranet in real time.
• The use of audio, video or computer technology in conjunction with classroom, webinar and/or e-learning training.

The Department of Fair Employment and Housing (“DFEH”) provides free online training courses on preventing sexual harassment and abusive conduct in the workplace that satisfy California’s training requirements.  The training is available in English, Spanish, Chinese, Korean, Tagalog, and Vietnamese.  The DFEH’s online training may be accessed at https://www.dfeh.ca.gov/shpt/.  Employers must retain a record of all employees’ training for a minimum of two years.

The January 1, 2021 deadline is fast approaching, so now is the time to ensure your employees receive the required training before December 31, 2020.

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Employers With 5 or More Employees Will Be Required to Provide California Family Rights Act Leave

by Fenton & Keller

November 13, 2020

Question: I heard there is a new leave law that applies to small employers in California.  What is it?

Answer: The existing California Family Rights Act (“CFRA”) family and medical leave law allows eligible employees to take up to 12 weeks of unpaid leave in any 12-month period for personal illness, illness of a family member, or the birth, foster placement, or adoption of a child.  Recently enacted Senate Bill 1383 (“SB 1383”) expands the provisions of the CFRA and beginning January 1, 2021, the CFRA will require most employers with 5 or more employees to provide eligible employees with unpaid leave.

Prior to January 1, 2021, the CFRA only applied to businesses having 50 or more employees within a 75-mile radius.  The CFRA limited an employee’s ability to request leave in connection with a family member’s serious health condition to instances involving a child, parent, or spouse.  Further, the CFRA only provided a cumulative 12 weeks for both parents to take leave to bond with a child.

Starting January 1, 2021, the expanded CFRA will require all employers with five or more employees to provide family care and medical leave to all eligible employees. Eligible employees must have worked for the employer for more than 12 months, and must have worked a minimum of 1,250 hours during the 12 months prior to the leave.

The expanded CFRA does the following:

• Allows eligible employees to take up to 12 weeks of unpaid CFRA leave to care for the employee’s parent, child, spouse, grandparent, grandchild, sibling, and registered domestic partner who has a serious health condition.
• Requires that employers, upon granting the leave request,  guarantee the employee the same or a comparable position upon the termination of the leave.
• Allows employees to take unpaid leave because of a “qualifying exigency” related to the covered active duty or call to covered active duty for an employee’s spouse, registered domestic partner, child, or parent in the military.
• Requires employers to maintain existing health care coverage during CFRA leave.
• Expands the definition of “child” to include all children, regardless of age or dependency, and children of a domestic partner.
• Requires an employer who employs both parents of a child to allow each employee up to 12 weeks of unpaid leave during the first year of the child’s birth, adoption, or foster placement.

In 2018 California enacted the New Parent Leave Act (“NPLA”), requiring employers with 20-49 employees to provide eligible employees with leave to bond with a new child.  SB 1383 will repeal the NPLA on January 1, 2021 because the expanded CFRA provides new parent leave.

SB 1383 creates challenges for employers with 50 or more employees that are covered under both the CFRA and the federal Family and Medical Leave Act (“FMLA”).  Because SB 1383 expands the definition of covered family members under CFRA, employees who are covered by the CFRA and the FMLA may be eligible for up to 24 weeks of leave in a 12-month period.  For example, eligible employees may take 12 weeks of CFRA leave to care for their grandparent’s serious health condition, plus another 12 weeks of FMLA leave due to their own serious health condition.

Employers should review the expanded CFRA, revise employee handbooks, create new leave forms and leave tracking protocols, and begin preparing procedures for providing employees leave under the CFRA.

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