Reopening California – What Employers Can Expect

On April 6, 2021, Governor Gavin Newsom announced his goal for California to reopen for business. According to the governor, businesses would be able to fully reopen as of June 15, 2021, as long as the state can meet two criteria: (1) vaccine supply is sufficient for Californians 16 years and older who wish to be inoculated; and (2) hospitalization rates are stable and low.

“With more than 20 million vaccines administered across the state, it is time to turn the page on our tier system and begin looking to fully reopen California’s economy,” said Governor Newsom. “We can now begin planning for our lives post-pandemic. We will need to remain vigilant and continue the practices that got us here – wearing masks and getting vaccinated – but the light at the end of this tunnel has never been brighter.”

Some of the state’s most populated counties have reached the “yellow tier,” the most lenient tier of Newsom’s Blueprint for a Safer Economy. Within this tier, small indoor gatherings can occur, and many businesses can resume indoor operations with modifications and capacity limits. If the state can meet the criteria set forth by the governor, on June 15, he says, all industries across the state can “return to usual operations with common-sense risk reduction measures such as masking and vaccinations.”

How Can California Employers Prepare to Reopen?

As we draw closer to the potential reopening of California, not much information is available on what the process will look like. The state’s office releases information to businesses at the same time it is released to the general public, so not much time is given for legal counsel to provide recommendations prior to the reopening date.

Based on the current information released by the state of California, employers can expect to continue with “common-sense health measures” such as masking and following Cal/OSHA emergency temporary standards and public health guidelines even after the state has moved to fully reopen.

According to the information released with Governor Newsom’s announcement on April 6^th, after reopening, “workplaces must continue to promote policies that reduce risk including improved indoor ventilation, and mask wearing in indoor and other high-risk settings as well as remote work when possible without impacting business operations.”

Essentially, businesses who are already operating under the current mandates and Cal/OSHA standards may not see much of a change in their operations. Despite the CDC’s most recent announcement that “fully vaccinated people can now resume activities without wearing masks or physically distancing,” it does not override state, local, tribal, or territorial laws. Businesses in California are still required to follow the mask and social distancing mandates set forth by the state.

Bringing Employees Back to Work

One of the big questions on employers’ minds is “when can I bring my employees back?” The answer is unfortunately not a simple one. While some employees may be ready to jump back into the workplace as if they never left it, others are more apprehensive and may have even gone through some extreme lifestyle changes over the course of the pandemic. Employers should be prepared to see some employee turnover as a result of bringing employees back to the worksite full time and must be careful not to penalize employees solely based on their inability to immediately return to office.

Steps for Returning to Work:

• Ensure compliance with federal and state/local mandates. Employers in California are required to have an Injury and Illness Prevention Program (IIPP) in place as well as Written COVID-19 Prevention Plan (WCPP) that is either separate from their IIPP or written into it. Employers are also still subject to Cal/OSHA’s Emergency Temporary Standards until further notice is given by the department.
• Review and Revise Policies. Employers should review their existing policies, and may need to revise their leave, childcare, and work from home policies to accommodate lifestyle changes that their employees have had to make. Any changes must be communicated to employees prior to their return to the workplace.
• Notify employees of reopening. Employers should create a “welcome back” letter to inform employees that they are expected to return to the workplace. This letter should include any changes the employer has made to the workplace and outline the health and safety measures that the employer will be enforcing. It should also include expectations for employees regarding their role in adhering to the health and safety measures.
• Consider a tiered return schedule. Employers may have more success by dividing their workforce into groups and allowing those groups to return at different times, beginning with the employees who are most interested in returning to the workplace and/or who require a more supervisory structure. This can give employees who are more reluctant to return or that need to make new childcare arrangements the time to do so.
• Consider alternate arrangements. At this point, employers and managers should already have a good idea of which employees are well-suited to working from home without a loss in productivity. Employers may want to consider allowing those employees to remain in a work-from-home status indefinitely if they believe they may have a hard time returning to the workplace.
• Do not retaliate against employees who aren’t ready to return to work. Employers should take extreme caution when recalling employees and receiving push back. While employees generally do not have a right to refuse to work based only on a generalized fear, they may be subject to certain job protection under local, state, or federal law. Additionally, high-risk employees may be entitled to reasonable accommodations even after the state has fully reopened. There will likely be an influx of wrongful termination lawsuits stemming from employees refusing to return to work, and it’s too early to determine whether the state will side with employees or employers on this issue.

Emplicity is continuing to monitor California’s path to reopening for business and will provide any updates as soon as they are available.