Steve Hirschfeld was interviewed on KRON4-TV about the range of issues facing employers as California eases pandemic restrictions. Highlights:
“The big issue is whether or not you can compel employees to be vaccinated, given the fact that vaccines haven’t fully been approved by the FDA.”
“What’s happening now is employers are strongly encouraging vaccinations, and in some cases are paying bonuses or incentives to get people vaccinated.”
“Beyond that, the issue we’re all waiting on is: If you’ve got folks who are vaccinated vs. unvaccinated, what are you going to do about masking? Last week, Cal/OSHA screwed the whole thing up by saying if even one person in the workplace is unvaccinated, everyone has to wear masks — that is not what the CDC or federal law is saying. We think what’s ultimately going to happen is, if employees are unvaccinated, they wear masks. If they’re vaccinated, they’re fine.”
On requiring masks:
“If the employer says ‘we want proof of vaccination,’ employees who are unvaccinated are going to have to wear masks. It’s the unvaccinated who are taking a major risk by not getting vaccinated. So the theory is, look, if you don’t want to, or if you have a religious or medical exemption, that’s fine — you’re just going to have to socially distance, but wear a mask.”
“Employers are private entities who can require that employees wear masks, or they are free to seek employment elsewhere.”
On requiring reluctant employees to return to work:
“This is America, you can’t force someone to go to work. But the reality is, you can say: if you want to continue to work here, you’ve got to come back to work. The only issue is if the employee tests positive for or has COVID.”
“An employee’s trepidation about coming back, either because they don’t want to be around other people or whatever — that is not a legitimate basis for an employee’s refusal to come back to work. The employer has a right to require that.”
On conflicting federal, state, and local guidelines:
“California is going to reopen on June 15 — that’s just generally in society, in terms of what the rules are — but Cal/OSHA governs the workplace. Allegedly on the 17th, they are going to come out with some new rules that probably are not going to go into effect until the end of June. So what I’m telling my clients in California is: it’s business as usual in terms of masking until Cal/OSHA rules otherwise. So even though we’re opening up on the 15th, hold your horses a little bit, until Cal/OSHA gives us the green light.”
“For now, employers should be requiring masking,” Steve concluded.
View the full interview here.
Steve Hirschfeld is managing partner of the San Francisco office of Hirschfeld Kraemer LLP. Contact Steve at firstname.lastname@example.org or (415) 835-9011.