Pub. 10 2021-2022 Issue 2

14 San Diego Dealer DÉJÀ VU ALL OVER COVID AGAIN By James J. McDonald, Jr. M asks and social distancing… sound familiar? Ugh. Add the heated conflicts between the “vaxxed” and the “unvaxxed,” and it seems like the long COVID-19 slog just keeps getting worse. That the rules and guidance keep changing is hardly helpful, either. Here are some questions and answers that are current and accurate as of this publication going to press: • May I ask my employees if they have been vaccinated? Yes. In fact, Cal/OSHA requires employers to document each employee’s vaccination status. You can ask to see their vaccination card, or they may self-certify. You should not keep copies of vaccination cards but just note on a checklist whether or not employees have provided proof of vaccination. • May I require my employees to be vaccinated? Yes, unless they have a medical condition that would be negatively impacted by the vaccine or a sincerely held religious belief against vaccinations. Requiring vaccinations as a condition of employment might drive away some of your best employees, however. • Must I require my employees to be vaccinated? Federal Occupational Safety and Health Administration has issued an “Emergency Temporary Standard” requiring employers of 100 or more employees to require employees either to show proof of vaccination or undergo weekly COVID-19 testing. This rule will not be directly applicable to California employers, but Cal/ OSHA will be required to issue a similar rule to go into effect on or about Jan. 1, 2022. Court challenges of both rules are likely, so it might take a while for the answer to this question to become clear. • In the meantime, may I incentivize my employees to get vaccinated? To an extent, yes. You may offer a nominal cash incentive or a gift card for proof of vaccination, but be prepared to accommodate an unvaccinated employee who claims a religious or medical condition exemption. One good incentive is to notify employees that they may take paid time to go and get the vaccine. The law actually requires that you allow employees to get vaccinated on working time. Urging employees to do so might convince those who have not yet been vaccinated because they “don’t have time” to go ahead and get the shot. • Are vaccinated employees required to wear masks indoors? Not in San Diego County. Los Angeles County and some other counties and cities around California require masks for vaccinated persons, but not here, at least for now. • What about unvaccinated employees? They must wear masks indoors unless they have a physical or mental condition that prevents them from wearing masks or other face covering. In that case, they must be tested at the employer’s expense twice per week, and they must produce a negative result on each test. • May I require COVID testing of unvaccinated employees? Y es. Such testing must occur during working time, and you must pay for the test. • Must I still do temperature checks and symptom questionnaires? No. Employees are still required to self-screen for symptoms. However, you should remind employees that if they experience symptoms of COVID-19, they should notify their supervisor and not come to work. • May employees choose to continue to wear masks, even if vaccinated? Yes, and they are protected by law from retaliation and harassment for doing so. • Must I provide masks for employees who are not vaccinated? Yes, and you must provide an N-95 respirator mask if an employee requests one.