VBJ July 2021

THE VALLEY BUSINESS JOURNAL
12 www.TheValleyBusinessJournal.com
July 2021
What Employers Should Know About Masks, the ADA and Repopulating the Post-Pandemic
Workplace
By Don Hitzeman
It seems that we have made it through
the worst of times, with the economy
reopening, masks coming off and people
traveling out and about once again.
However, for employers reopening the
workplace, new concerns continually
arise. Among these: how to provide employees
in the workplace with a working
environment which is safe, nondiscriminatory
and operated within the guidelines
of the law.
Some questions which immediately
arise include whether employees must
wear masks in the workplace where not
all are vaccinated, or when an outbreak
of COVID-19 occurs, or when employees
are in regular contact with the general
public, many of whom are not yet vaccinated.
Modified guidelines for California
employers about the wearing of masks
were issued by Cal OSHA on June 17,
2021, changing aspects of the Emergency
Temporary Standards, which were given
immediate effect by an order signed by
Governor Newsom the same day. Those
guidelines provide that employees who
are vaccinated need not wear masks
indoors or outdoors under most circumstances,
while unvaccinated employees
must continue to wear masks indoors
in the workplace. All employees are
required to wear face masks indoors
and outdoors during an outbreak of
COVID-19 in the workplace. Employers
are required to document the vaccination
status of employees but need not ask for
proof of vaccination.
Employees are permitted to attest to
their vaccination status in writing to the
employer. Employers are also required
by the modified Cal OSHA Standards to
provide unvaccinated employees with
N-95 respirators for use in the workplace
on request. More detailed information on
these regulatory changes may be found at
www.dir.ca.gov/dosh/coronavirus.
The guidelines regarding masks in
the workplace are but one example of the
ever-changing landscape for employers
in responding to the pandemic. Employers
must keep up with the latest information
and guidance in order to remain in
compliance with the basic requirements
“ The guidelines
regarding masks in the
workplace are
but one example of
the ever-changing
landscape for
employers
of providing a safe workplace, free of
discrimination in decisions regarding
employees.
It bears remembering that the
pre-pandemic laws and regulations regarding
workplace discrimination remain
in place and now have new and different
dimensions to take into account. This
includes the Americans with Disabilities
Act and other Equal Employment Opportunity
statutes under federal law, such as
the Immigration and Nationality Act, as
well as corresponding state antidiscrimination
laws.
The ADA covers private employers
of 15 or more employees. For those
covered employers, the ADA protects
employees from discrimination based
upon disabilities or perceived disabilities
which restrict a major life activity.
Major life activities include breathing,
speaking, hearing and so on. One of these
major life activities is that of working,
which is quite inclusive. During the
pandemic period, the ability for one to
work and the perceptions which affected
or limited one’s availability to
report to a workplace, had
to be carefully navigated by
employers.
Thus, when workers
could not or would not report
because of a pre-existing
medical condition that
may have made them more
vulnerable to the Corona
virus, employers had to engage
in balancing the need
for employees to physically
be present at work against
the ability to do that work
remotely. Likewise, bringing
employees back to the workplace
requires consideration
of an employee’s pre-existing
conditions which may prohibit
them from immediately
reporting back to a workplace that is
being repopulated with unvaccinated
employees.
Employers covered by the ADA must
still go through a process of determining
whether reasonable accommodations are
available which allow employees to continue
performing their essential job functions,
while also taking into consideration
their inability to physically be present in
the workplace. Obviously, this analysis
greatly depends on a number of factors,
including the essential functions of each
job, the need for personal contact either
with fellow employees or customers, or
both, and the expected length of time
that the employee would be unavailable
to report to the workplace.
The Equal Employment Opportunity
Commission, which is charged with enforcing
provisions of the ADA, has provided
a list of FAQ’s to assist employers
navigating through this difficult time. It
may be found at www.eeoc.gov/wysk/
what-you-should-know-about-covid-
19-and-ada-rehabilitation-act-and-other-
EEO-laws. Perhaps even more important,
it is time to get to know a good, reputable
employment law attorney who can help
pilot the ship through these treacherous
waters.
Donald W. Hitzeman is a shareholder
with Reid & Hellyer, A Professional
Corporation, and an experienced Business
Law Litigator and Transactional
Attorney. He has over 38 years of legal
experience, including advising business
owners and operators on employee
issues, as well as general business litigation,
transactional matters and estate
planning. He may be reached at his Murrieta
office at (951)695-8700.