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COVID-19 Return to Work Plan:
Who Returns, When, Where & How
April 28, 2021

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Presenters
Camille Hamilton Pating
Principal
(510) 808-2000
cpating@meyersnave.com
Arlene Yang
Principal
(619) 330-1700
ayang@meyersnave.com

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• 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.

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• Returning To Work
• Vaccination Issues
• Employees Who Refuse
• Workplace Safety
• Anticipating Potential COVID-19 Litigation
• Diversity, Equity & Inclusion Impacts

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Returning to Work

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JUNE
16

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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

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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

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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

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Health & Safety Reopening Procedures
 Adjust work environment
 Staff health questionnaires
 Temperature checks
 PPE and social distancing
requirements
 Prepare for reporting
of positive cases

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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

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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.

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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

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Vaccination Policy Options

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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

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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.

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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?

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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

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Vaccine Incentives
• Wellness program must be voluntary.
• No current EEOC guidance.
• Special benefits or advantages
to vaccinated employees?
• Taxation of benefits?
• Consult with counsel!

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Education
https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/toolkits/essential-workers.html

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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.

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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

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Employees Who Refuse the Vaccine
or to Return to Work

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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

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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?

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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.

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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.

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Workplace Safety

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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

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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

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COVID-19 Leave and Reporting

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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

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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

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Reducing Liability for Potential Claims

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Trends In COVID-19 Litigation
• Wrongful Termination
• Workplace Safety
• Paid Sick Leave
• FMLA Leave
• Failure to Accommodate Disabilities
• Wage and Hour Issues/PAGA

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Consider Diversity, Equity and Inclusion Impacts

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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

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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

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Camille Hamilton Pating
Principal
(510) 808-2000
cpating@meyersnave.com
Arlene Yang
Principal
(619) 330-1700
ayang@meyersnave.com