Jonathan M. Brenner, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Los Angeles office, was quoted in HR Dive, in “California Employers, Facing Tight Safety Rules, Need to 'Get Comfortable with Change,'” by Katie Navarra.
Following is an excerpt:
Just a few weeks after California's Division of Occupational Safety and Health, also known as Cal/OSHA, loosened its emergency temporary standards, regions of the state resumed stricter masking and social distancing guidelines. Those moves come as the U.S. is arguably on the verge of a fourth wave of the pandemic. …
Of course, there is no guarantee. The pandemic has proven nothing is static. That makes it challenging for employers to keep pace with the ever-evolving guidelines for protecting staff while staying in compliance and avoiding fines.
Revised workplace protocols
On June 17, the Cal/OSHA Board voted to adopt the revised standards. Newsom signed an executive order approving immediate implementation statewide.
The update included 13 changes related to masking, vaccination and physical distancing in the workplace.
Among the changes were updates:
- Eliminating face masks for fully vaccinated staff.
- Removing masking requirements for outdoor work regardless of vaccination status.
- Reversing distancing requirements.
- Protecting employees who choose to wear a mask without fear of retaliation.
- Reviewing, evaluating, and updating ventilation and filtration efficiencies.
- Resuming stricter protocols in the event of an exposure or outbreak at the workplace.
"Face coverings have been subject to a lot of changes," said Jonathan M. Brenner, member of law firm Epstein Becker Green. "One important new rule is that employers must provide a respirator grade, N95 or similar, mask to any employee who requests one, irrespective of vaccine status. That means employers must buy them in advance and have them on hand for anyone."
The latest vaccination guidance
Statewide rules allow employers to require vaccinations as long as they provide appropriate accommodations for medical reasons, disabilities and religious practices; this is consistent with federal guidelines. What is less clear is how to treat vaccinated and unvaccinated staff. …
Employers have the thumbs up to require vaccines and request proof of vaccination, but the process followed is up to the human resources team. It is permissible to ask to see the vaccine card or to be shown an image of the documentation.
However, the recently updated guidance from the California Department of Fair Employment and Housing also notes that any retained records of vaccination must be maintained as confidential medical records by the employer. "It is okay to mention and discuss vaccinations as long as it follows agency guidance because of significant medical privacy issues," Brenner said. …
Stay current
Human resources management companies and law firms alike are providing timely regulation interpretations via dedicated coronavirus update pages like those maintained by Silver and Brenner’s firms. "A lot of government agency websites are also quite good," Brenner said. "The state’s government agency websites offer good regular maintenance of resources including an FAQ. The Department of Industrial Relations for the state of California is regularly putting out guidance to help employers with answers to questions."
